Exhibit 10.8
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made effective as of May
01, 2004 (the "Effective Date").
BETWEEN:
Bay Resources Ltd, a company incorporated under the laws of
Delaware,
having its principal
office at 580 St. Kilda Rd. Level 8, Melbourne,
Victoria 3004 Australia (the "Company")
AND:
Pinchas T.
Althaus, having a residence at 675 Empire Blvd. 3L
Brooklyn, NY 11213 U.S.A. (the "Executive")
WHEREAS:
The Company wishes to retain the services of the Executive to provide the
services hereinafter described during the term hereinafter set out. NOW
THEREFORE in consideration of the mutual covenants and agreements herein
contained and for other good and valuable consideration, the Company and
Executive undertake and agree as
follows:
Term
1. The Company shall employ the
Executive for a period commencing as of the
Effective Date
and continuing until and including December 31, 2006.
Title
2. The Executive will have the
title of Chief Operating Officer.
Duties
3. The Executive shall serve the Company and any
subsidiaries of the
Company
in such capacity
or capacities
and shall perform such
duties and exercise
such powers
pertaining to the
management
and operation of the
Company as
may be
determined
from time to time by the board of directors of the
Company
consistent
with his position as Chief Operating Officer. The
Executive
shall:
(a) devote his endeavours and best
efforts during normal business hours to
the business and affairs of the Company;
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(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 Company;
(c) use his best efforts to promote the interests and goodwill of the
Company;
(d) comply with all laws applicable to the Company in carrying out the
Company's business;
(e) ensure that the policies and
procedures
of the Company as
advised or
communicated are
followed and complied with; (f) faithfully serve the
Company; and
(g) comply with and observe all lawful requests,
directions and restrictions made or imposed by a Director.
4. From time to time the
Company will review
and update the duties so that it
accurately
outlines the current
scope of the position.
This procedure is
jointly
conducted by the Company in consultation with the Executive.
It is
the Company's
aim to reach agreement to reasonable changes. If an agreement
is not possible
the Company reserves
the right to insist on changes to the
Executive's
duties after consultation with the Executive.
5. The Executive shall be permitted to perform
outside business endeavours
provided
that such activities do not materially conflict with the
Executive's
duties hereunder.
Hours of Work
6. The Executive shall work such hours appropriate to a position of this
seniority
Reporting Procedures
7. The Executive shall report to the person holding the office of Chief
Executive
Officer. The Executive shall give a written report on the
operations
and business
affairs of the Company
on a monthly basis to
the
Secretary
by the third
business day 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 of this Agreement.
Remuneration
8. The annual base salary
payable to the Executive for his services hereunder
shall be
US$110,000, exclusive of bonuses, benefits and other
compensation.
This
salary is an all
inclusive salary and is provided in lieu of all
payments and
obligations specified
in any applicable
awards including the
weekly
wage rate of ordinary hours; industry, district and roster
allowances;
leisure days;
public holidays; overtime; shift and weekend
penalties; leave
loading payments and any other payments.
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9. The Company shall
provide the
Executive with a statement of earnings
and
deductions in
respect of each salary instalment paid.The annual base salary
payable to the
Executive for his
services hereunder
for each successive
year of the term
of this Agreement,
exclusive of bonuses, benefits and
other
compensation,
shall increase by a percentage of the annual base
salary
for the immediately preceding year at a rate determined by the
Remuneration
Committee of the
Company. The annual
base salary payable
to
the Executive, shall be payable in monthly
instalments in arrears
on the
1st 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
applicable law.
Payment of the salary
will be by electronic funds transfer
to a bank
account in the USA nominated by the Executive.
10. The Company shall provide the
Executive with Executive benefits comparable
to those
provided by the Company to other senior executives of the Company
generally and
shall permit the Executive to participate in any bonus plan,
share purchase
plan, retirement plan or similar plan offered by the Company
to its
senior executives generally in the manner and to the extent
authorized by
the Remuneration
Committee of the
Company. In addition
the
Executive
will be able to
participate in such
extended health,
medical,
disability and
insurance or other benefit plans established by the Company
and made
available to other executives of the Company.
Stock Options
11. The Company shall grant the
Executive options to purchase 750,000 shares of
common stock of
the Company (the
"Options") at a per share exercise price
of US$1.00,
with the Options
vesting over the period of the
contract as
follows:
250,000 of the
Options will vest as of the Effective Date, a
further
250,000 will vest at the mid-term
date of the
contact, and the
remaining
250,000 will vest on December 31st 2006. The Options will be
issued subject
to applicable
securities laws, the
availability of Options
within the
Company's stock option plan (the "Plan") and
may be subject to
hold periods.
In addition,
the Options shall be
subject to the provisions
of the Plan and
the Company's standard
form of stock option
agreement (as
executed, the "Stock
Option Agreement").
12. In the case of a Change
of Control (defined below), all Options then
outstanding
will immediately vest for the purpose of such transaction.
Furthermore,
in the event of a
Qualifying Transaction (defined below), the
acquirer,
whether a so-called
"Capital Pool Company" ("CPC") or otherwise,
shall issue to
the Executive the same number of options to purchase common
shares of such
acquirer (or if no
such shares exist a class of securities
having rights
similar to those
generally held by
holders of common stock)
under the same
terms and conditions
as the Options at the per share market
price of such
acquirer on the date that such transaction is consummated.
Furthermore,
in the event of a
Reverse Takeover
(as such term is
defined
under
Policy 5.2 Changes of
Business and Reverse Takeovers of the TSX
Venture
Exchange) where all or substantially all of the assets of the
Company are
transferred to a third
party, the Executive
shall receive the
same number of
options to purchase common shares of such third party (or if
no such shares
exist a class of securities having rights similar to those
generally
held by holders of common stock) under the same terms and
conditions as
the Options at the per share market price of such third party
on the date that
such transaction is consummated
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13. The term "Change of Control" shall mean any one of the following
transactions:
(i) the acquisition in a transaction or a series of
transactions
(including a merger) by any person or organization, other than
the Company or
any of its
subsidiaries or any
Executive benefit plan or
related
trust of the
Company or any of its
subsidiaries,
of beneficial
ownership of
fifty percent (50%) or more (on a fully diluted basis) of the
combined
voting power of the
then outstanding
voting securities of the
Company
entitled to vote
generally in the election of directors or persons
holding similar
positions with the Company (including, without limitation,
a Qualifying
Transaction (as
defined below); (ii)
individuals who, as
of
the date of this Agreement, constitute the Board of Directors of the
Company (or
similar body elected to manage the affairs of the Company)
cease for any
reason to constitute at least a majority of the Board of
Directors (or
similar body) as constituted from time to time; or (iii)
the
sale or other
disposition of all or
substantially all of the assets of the
Company in one
transaction or series
of related
transactions,
including,
without
limitation,
a Qualifying Transaction. The term "Qualifying
Transaction"
shall mean a transaction involving the acquisition of stock or
assets by a CPC
where following such a transaction the CPC gains full
listing privileges on the
Toronto Stock Exchange.
Holidays
14. The Executive shall be entitled to three weeks'
paid holidays per
fiscal
year of the
Company, excluding Company holidays and religious holidays, and
at a time
approved in advance by the Chief Executive Officer, which
approval shall
not be unreasonably
withheld, delayed or conditioned
but
shall take into
account the staffing
requirements
of the Company and
the
need for the
timely performance of the Executive's responsibilities. In the
event that the
Executive decides not to take all the
vacation to which he
is entitled in
any fiscal year, the Executive shall be entitled to take up
to one week of
such vacation in the
next following
fiscal year at a
time
approved in
advance by the Chief Executive Officer.
Expenses
15. The Executi
