Exhibit 10.19
EXECUTIVE
EMPLOYMENT AGREEMENT
This
EXECUTIVE EMPLOYMENT AGREEMENT (this “Agreement”)
is made effective this January 1, 2007, by and between CAPITAL
GOLD CORPORATION, a Delaware corporation
(“Employer”), and J. SCOTT HAZLITT, a Colorado
resident (“Executive”).
WHEREAS,
Executive agrees to be employed by Employer for the period and
upon and subject to the terms herein provided;
and
WHEREAS,
Employer agrees to employ Executive for the period and upon
and subject to the terms herein provided;
THEREFORE,
in consideration of the foregoing and of the mutual promises,
covenants and agreements contained herein, the legal
sufficiency of which is hereby acknowledged, and intending to
be legally bound, Employer and Executive agree:
1.
Employment .
Upon and subject to the terms provided herein, Employer agrees to
employ Executive, and Executive hereby agrees to be employed by
Employer, as Employer’s Vice President of Mine Development,
or other substantially similar position.
2.
Term of Employment .
Subject to the terms set forth in this Agreement, Employer agrees
to employ Executive and Executive hereby agrees to be employed by
Employer for a period (the “Employment Period”)
commencing from the date hereof until the third anniversary of the
date hereof. The Employment Period shall automatically renew for
successive one-year periods unless either party provides the other
party with written notice of its intent not to renew at least
thirty (30) days prior to the expiration of the then current
Employment Period.
3.
Compensation .
(a)
Base Salary .
As compensation for the services rendered pursuant to this
Agreement, Employer agrees to pay Executive a base salary at an
annual rate of not less than $105,000, payable in installments in
accordance with Employer’s standard payroll practices,
subject to such payroll and withholding deductions as are required
by law or authorized by Executive. The amount of the base salary
shall be reviewed periodically and may be increased at the sole
discretion of Employer.
(b)
Bonus .
Executive shall be eligible for any annual incentive bonus
opportunity offered by Employer to employees at Executive’s
level. In the event of any conflict between this Agreement and any
incentive bonus plan adopted by Employer for its officers and
employees, this Agreement shall control. The amount of this bonus,
as well as the criteria necessary to earn a bonus, may be changed
at any time by Employer and shall be within the sole discretion of
Employer. All bonuses paid pursuant to this Agreement will be
subject to applicable withholdings and deductions and will be paid
no earlier than fifteen (15) days and no later than ninety (90)
days after Employer’s fiscal year end for which the bonus is
earned. If Executive’s employment terminates, voluntarily or
involuntarily, prior to the last day of the fiscal year for which
the bonus applies, Executive acknowledges that he is not entitled
to any bonus not yet paid at the time of the termination because
any such unpaid bonus will not be earned, vested, due, or owing.
Executive hereby expressly forfeits and waives any such unpaid
bonus.
(c)
Vacation.
For
each full twelve (12) months of employment, Executive shall be
entitled to receive four (4) weeks paid vacation. One (1) week of
paid vacation may be carried forward from one calendar year to the
next calendar year only (the “Carried Forward
Vacation”). If applicable, Executive’s first week of
vacation each calendar year shall be deemed the Carried Forward
Vacation.
(d)
Benefits .
Executive shall be entitled to participate in the employee benefits
plans offered to all employees of Employer. Employer shall not be
required to establish or continue any benefit plans or take any
action to cause Executive to be eligible for any such benefits on a
basis more favorable than that applicable to all its employees
generally.
(e)
Stock Options. Executive
will be eligible to participate in any stock option or other equity
compensation plan adopted by Employer during the term of this
Agreement and applicable to other employees at Executive’s
level (the “Equity Plan”). The number of options,
vesting schedule, exercise price, and all other terms and
conditions of the stock options shall be set forth in an option
agreement pursuant to the applicable plan and shall be commensurate
with Executive’s position, as determined by the Committee of
Employer’s Board of Directors charged with administering the
Equity Plan, in its sole discretion. Employer may, consistent with
its obligations under such a plan or plans, amend or discontinue
any or all stock option plans at any time.
(f)
Expense Reimbursement .
Employer shall reimburse Executive for all reasonable and
documented travel, entertainment and other business expenses
actually and properly incurred by him in relation to
Employer’s business, as they are incurred. No such expense
reimbursement shall be allowed with regard to such expenses that
exceed $5,000 unless such expenses have been pre-approved by
Employer in writing.
(g)
Office and Duties .
Executive shall report to the President and Chief Executive Officer
or such other supervisor as designated by the President and Chief
Executive Officer of Employer. Executive shall perform such tasks
commensurate with this position as may from time to time be
assigned by Employer. Executive shall devote all business time,
labor, skill, undivided attention and best ability to the
performance of Executive’s duties hereunder in a manner which
will faithfully and diligently further the business and interests
of Employer. During the term of employment, Executive shall not
directly or indirectly pursue any other business activity without
the prior written consent of Executive’s supervisor, with the
exception of passive personal investments not in breach of any
other term or provision hereof. Executive agrees to travel to
whatever extent is reasonably necessary in the conduct of
Employer’s business, at Employer’s expense and pursuant
to Employer’s standard policies and procedures.
4.
Termination of Employment .
Notwithstanding any other provision of this Agreement,
Executive’s employment may be terminated as
follows:
(a)
Expiration. This
Agreement may be terminated upon expiration of the term hereof.
Following termination pursuant to this Section 4(a),
Employer’s only obligation to Executive shall be to pay to
Executive all accrued base salary, all accrued vacation time and
any reasonable and necessary business expenses incurred by
Executive in connection with his duties, all to the date of
termination and payable in a lump sum, less applicable deductions
and withholdings, as soon as administratively practicable following
Executive’s termination.
(b)
Termination for Cause. This
Agreement may be terminated by Employer for Cause. For purposes of
this Agreement, “Cause” justifying the termination of
this Agreement by Employer is defined as: (1) failure or refusal to
perform the services required hereunder; (2) a material breach by
Executive of any of the terms of this Agreement; or (3)
Executive’s conviction of a crime that either results in
imprisonment or involves embezzlement, dishonesty, or activities
injurious to Employer or its reputation. Whether Cause exists under
this Agreement shall be determined by the Employer in its
reasonable discretion. Following termination pursuant to this
Section 4(b), Employer’s only obligation to Executive shall
be to pay to Executive all accrued base salary, all accrued
vacation time and any reasonable and necessary business expenses
incurred by Executive in connection with his duties, all to the
date of termination and payable in a lump sum, less applicable
deductions and withholdings, as soon as administratively
practicable following Executive’s termination.
(c)
Disability. This
Agreement may be terminated by Employer upon at least thirty (30)
days’ written notice if Executive is prevented by illness,
accident or other disability (mental or physical) from performing
the essential functions of the position for one or more periods
cumulatively totaling three (3) months during any consecutive
twelve (12) month period. In the event this Agreement is terminated
pursuant to this Section 4(c), Employer shall pay to Executive
all accrued base salary, all accrued vacation time and any
reasonable and necessary business expenses incurred by Executive in
connection with his duties, all to the date of termination and
payable in a lump sum, less applicable deductions and withholdings.
In addition, Employer shall pay to Executive severance payments in
an amount equal to one (1) month of Executive’s base salary,
payable in a lump sum, less applicable deductions and withholdings,
as soon as administratively practicable following Executive’s
termination (“Disability Severance Payments”).
Severance payments made by Employer to Executive pursuant to this
Section 4(c) are conditioned on the Executive signing a
Confidential Severance Agreement and Release substantially in the
form attached hereto as
Exhibit A .
(d)
Death. This
Agreement shall be automatically terminated in the event of
Executive’s death during the term of employment. In the event
this Agreement terminates upon Executive’s death, Employer
shall pay Executive’s estate or beneficiary, as applicable,
all accrued base salary, all accrued vacation time and any
reasonable and necessary business expenses incurred by Executive in
connection with his duties, all to the date of termination and all
payable in a lump sum, less applicable deductions and withholdings,
as soon as administratively practicable following Executive’s
termination.
(e)
Without Cause. This
Agreement may be terminated by Employer without Cause by giving
notice at least thirty (30) days prior to the effective termination
date;
provided
that Employer
pays Executive each of the following:
(i)
Employer
shall pay Executive severance payments (the “Cash
Severance Payments”) in an amount equal to
Executive’s base salary for three (3) months after the
first anniversary of Executive’s original employment
with Employer regardless of the date of this agreement, plus
an additional one (1) month of base salary for each additional
full year of employment (the “Cash Severance
Payments”). Notwithstanding the foregoing, Cash
Severance Payments shall not exceed 12 months of base salary.
Such Cash Severance Payments shall be paid in equal monthly
installments to Executive beginning
in the month following Executive’s termination
.
In addition, Employer shall pay to Executive all accrued base
salary, all accrued vacation time and any reasonable and
necessary business expenses incurred by Executive in
connection with his duties, all to the date of termination and
payable in a lump sum ,
less applicable deductions and withholdings ,
as soon as administratively practicable following
Executive’s termination.
(ii)
If
and when the Company adopts a health insurance plan for its
employees and Executive is covered under such plan, provided
that Executive timely elects continuation coverage under the
Consolidated Omnibus Budget Reconciliation Act of 1985, as
amended (“COBRA”), Employer shall pay, on
Executive’s behalf, the portion of premiums of
Executive’s group health insurance, including coverage
for Executive’s eligible dependents, that Employer paid
immediately prior to Executive’s separation of
employment with Employer (“COBRA Payments”) for a
period of twelve (12) months (“COBRA Period”).
Employer will pay such COBRA Payments for Executive’s
eligible dependents only for coverage for which those
dependents were enrolled immediately prior to the date of
Executive’s separation of employment. Executive will
continue to be required to pay that portion of the premium of
Executive’s health coverage, including coverage for
Executive’s eligible dependents, that Executive was
required to pay as an active employee immediately prior to the
date of Executive’s separation of employment. For the
balance of the period that Executive is entitled to coverage
under COBRA after the COBRA Period, if any, Executive shall be
entitled to maintain coverage for Executive and
Executive’s eligible dependents at Executive’s
sole expense.
(iii)
The
Cash Severance Payments and the COBRA Payments (if any) shall
be paid so long as Executive is not in breach of any term of
this Agreement, including, without limitation, Sections 5, 6,
and 7 hereof. The Cash Severance Payments and COBRA Payments
(if any) made by Employer to, or on behalf of, Executive
pursuant to this Section 4(e) are conditioned on the
Executive signing a Severance Agreement and Release
substantially in the form attached hereto as
Exhibit A .
(f)
Material Breach. This
Agreement may be terminated by Executive for a material breach by
Employer of any of the terms of this Agreement, upon thirty (30)
days’ written notice specifying the breach, and failure of
Employer to either (i) cure or diligently commence to cure the
breach within the 30-day notice period, or (ii) dispute in good
faith the existence of the material breach. Following termination
pursuant to this Section 4(f), Employer shall pay to Executive
Cash Severance Payments (as defined and calculated in section
4(e)(i)). Such severance payments shall be paid in equal monthly
installments to Executive beginning
in the month following Executive’s termination
.
Such severance payments shall be paid so long as Executive is not
in breach of any term of this Agreement, including, without
limitation, Sections 5, 6, and 7 hereof. In addition, Employer
shall pay to Executive all accrued base salary, all accrued
vacation time and any reasonable and necessary business expenses
incurred by Executive in connection with his duties, all to the
date of termination and payable in a lump sum ,
less applicable deductions and withholdings ,
as soon as administratively practicable following Executive’s
termination. Severance payments made by Employer to Executive
pursuant to this Section 4(f) are conditioned on the Executive
signing a Confidential Severance Agreement and Release
substantially in the form attached hereto as
Exhibit A .
(g)
Resignation .
This Agreement may be terminated by Executive for any reason or no
reason at all by giving notice to Employer of Executive’s
resignation at least sixty (60) days prior to the effective
resignation date. Following termination pursuant to this Section
4(g), Employer’s only obligation to Executive shall be to pay
to Executive all accrued base salary, all accrued vacation time and
any reasonable and necessary business expenses incurred by
Executive in connection with his duties, all to the date of
termination and payable in a lump sum, less applicable deductions
and withholdings.
(h)
Termination Upon a Change of Control .
In the event of a Termination Upon a Change of Control as defined
in the Agreement Regarding Change In Control (“Change In
Control Agreement”) attached hereto as
Exhibit B ,
Employer’s obligation to Executive shall be as set forth in
the Change In Control Agreement.
5.
Proprietary Information .
(a)
Executive
represents and warrants to Employer that (i) Executive is not
subject to any limitation or agreement restricting employment
by Employer or performance of Executive’s duties
hereunder, and (ii) neither Executive nor any third party has
any right or claim to Executive’s work produced on
behalf of Employer or using the property, personnel, or
facilities of Employer. Executive shall not misappropriate
proprietary rights of Employer or any third
party.
(b)
Executive
further agrees not to make, use, disclose to any third party,
or permit to be made, used, or disclosed, any records, plans,
papers, articles, notes, memoranda, reports, lists, records,
drawings, sketches, specifications, software programs, data,
or other materials of any nature relating to any matter within
the scope of the business of Employer or concerning any of its
dealings or affairs (“Materials”), whether or not
developed, in whole or in part, by Executive and whether or
not embodying Confidential Information (defined below),
otherwise than for the benefit of Employer. Executive shall
not, after the termination of employment, use, disclose, or
permit to be used or disclosed, any such Materials, it being
agreed that all such Materials shall be and remain the sole
and exclusive property of Employer. Immediately upon the
termination of employment, Executive shall deliver all such
Materials, and all copies thereof, to Employer, at its
designated office.
6.
Non-Competition; Non-Solicitation; Anti-Raiding;
Non-Disparagement .
Without
the prior written approval of the President or Chief Executive
Officer of Employer, Executive shall not, directly or indirectly,
during his employment and until the end of one (1) year after
termination of employment (however such termination occurs,
including, without limitation, termination pursuant to Section
4(a), 4(b), 4(c), 4(e), 4(f), or 4(g)):
(a)
Engage
in a “Competing Business’’ in the
“Territory”, as those terms are defined below,
whether as a sole proprietor, partner, corporate officer,
employee, director, shareholder, consultant, agent,
independent contractor, trustee, or in any other manner by
which Executive holds any beneficial interest in a Competing
Business, derives any income from any interest in a Competing
Business, or provides any service or assistance to a Competing
Business. “Competing Business” shall mean any
business that mines or produces minerals which is competitive
with the business of Employer or any of its Affiliates
(defined below), as conducted or under development at any time
during the term of employment. “Affiliates” shall
mean any entity controlled by or under common control with
Employer or any joint venture, partnership or other similar
entity to which Employer is a party. “Territory”
shall mean anywhere within a 50 mile radius of Caborca in the
state of Sonora, Mexico. The provisions of this Section 6
will not restrict Executive from owning less than five percent
of the outstanding stock of a publicly-traded corporation
engaged in a Competing Business;
(b)
Acquire,
lease or otherwise obtain or control any beneficial, direct or
indirect interest in mineral rights, or other rights or lands
necessary to develop, any mineral property in which Employer
or any of its Affiliates at the time of termination as a
beneficial interest or is actively seeking to acquire, or that
is within a distance of five (5) kilometers from any point on
the outer perimeter of any such property in which Employer or
any of its affiliates has a beneficial interest or that it is
seeking to acquire;
(c)
Conduct
any exploration or production activities or otherwise work on
or in respect of any mineral property within a distance of
five (5) kilometers from any point on the outer perimeter of
any mineral property in which Employer or any of its
affiliates then has a beneficial interest or is actively
seeking to acquire;
(d)
(i) Contact
or solicit, or direct or assist others to contact or solicit,
for the purpose of promoting any person’s or
entity’s attempt to compete with Employer or any of its
Affiliates, in any business carried on by Employer or any of
its Affiliates during the period in which Executive was an
employee of Employer, any suppliers, independent contractors,
vendors, or other business associates of Employer or any of
its Affiliates that were existing or identified prospective
suppliers, independent contractors, vendors, or business
associates during such period, or (ii) otherwise
interfere in any way in the relationships between Employer or
any of its Affiliates and their suppliers, independent
contractors, vendors, and business associates;
(e)
(i) Solicit,
offer employment to, otherwise attempt to hire, or assist in
the hiring of any employee or officer of Employer or any of
its Affiliates; (ii) encourage, induce, assist or assist
others in inducing any such person to terminate his or her
employment with Employer or any of its Affiliates; or
(iii) in any way interfere with the relationship between
Employer or any of its Affiliates and their employees;
or
(f)
Make
any public statement or perform or do any other act
prejudicial or injurious to the reputation or goodwill of
Employer or any of its Affiliates or otherwise interfere with
the business of Employer or any of its
Affiliates.
7.
Confidentiality .
(a)
The
term “Confidential Information” shall include, but
not be limited to, the whole or any portion or phase of (i)
any confidential, or proprietary or trade secret, technical,
business, marketing or financial information, whether
pertaining to (1) Employer or its Affiliates, (2) its or their
suppliers, or (3) any third party which Employer or its
Affiliates is under an obligation to keep confidential
including, but not limited to, methods, know-how, techniques,
systems, processes, software programs, works of authorship,
supplier lists, projects, plans, and proposals, and (ii) any
software programs and programming prepared for
Employer’s benefit whether or not developed, in whole or
in part by Executive. For purposes of this Agreement,
“Confidential Information” shall include, but
shall not be limited to, strategies, analysis, concepts,
ideas, or plans; operating techniques; demographic and trade
area information; prospective site locations know-how;
improvements; discoveries, developments; designs, techniques,
procedures; methods; machinery, devices; drawings;
specifications; forecasts; new products; research data,
reports, or records; marketing or business development plans,
strategies, analysis, concepts or ideas; contracts; general
financial information about or proprietary to Employer,
including, but not limited to, unpublished financial
statements, budgets, projections, licenses, and costs;
pricing; personnel information; and any and all other trade
secrets, trade dress, or proprietary information, and all
concepts or ideas in or reasonably related to Employer’s
business. All such Confidential Information is extremely
valuable and is intended to be kept secret to Employer; is the
sole and exclusive property of Employer or its Affiliates;
and, is subject to the restrictive covenants set forth herein.
The term Confidential Information shall not include any
information generally available to the public or publicly
disclosed by Employer (other than by the act or omission of
Executive), information disclosed to Executive by a third
party under no duty of confidentiality to Employer or its
Affiliates, or information required by law or court order to
be disclosed by Executive.
(b)
Executive
shall not, without Employer’s prior written approval,
use, disclose, or reveal to any person or entity any of
Employer’s Confidential Information, except as required
in the ordinary course of performing duties hereunder.
Executive shall not use or attempt to use any Confidential
Information in any manner which has the possibility of
injuring or causing loss, whether directly or indirectly, to
Employer or any of its Affiliates.
(c)
In
the event that Executive’s employment with Employer is
terminated for any reason whatsoever, he shall return to
Employer, promptly upon Employer’s written request
therefore, any documents, photographs, tapes, discs, memory
devices, and other property containing Confidential
Information which were received by him during his employment,
without retaining copies thereof.
8.
Acknowledgments .
Executive acknowledges that the covenants contained in Sections 5,
6, and 7, including those related to duration, geographic scope,
and the scope of prohibited conduct, are reasonable and necessary
to protect the legitimate interests of Employer. He further
acknowledges that the covenants contained in Sections 5, 6, and 7
are designed, intended, and necessary to protect, and are
reasonably related to the protection of, Employer’s trade
secrets, to which he will be exposed and with which he will be
entrusted. Specifically, without limitation, Executive is entrusted
with trade secrets regarding: the strategic planning initiatives;
business development plans; budgets; financial information;
management training; future business plans; and operational
strategies and procedures.
9.
Forfeiture of Severance Payments .
If Executive breaches Sections 5, 6, or 7 of this
Agreement during
the term that severance payments are made pursuant to Sections
4(c), 4(e), or 4(f) of this Agreement, Executive shall pay back to
Employer all severance payments received to date.
Nothing
contained in this Section 9 shall be construed as prohibiting
Employer from pursuing any other remedies available to it in the
event of the breach of Sections 5, 6, or 7, including the
equitable remedies set forth in Section 11.
10.
Non-exclusivity of Rights .
Amounts that are vested benefits or that Executive is otherwise
entitled to receive under any plan, policy or program of, or
contract or agreement with Employer at or subsequent to termination
of employment (however
such termination occurs, including, without limitation, termination
pursuant to Section 4(a), 4(b), 4(c), 4(e), 4(f), 4(g), or 4(h))
shall be payable in accordance with such plan, policy or program
of, or any contract or agreement except as explicitly modified by
this Agreement.
11.
Equitable Remedies .
The services to be rendered by Executive and the Confidential
Information entrusted to Executive as a result of his employment by
Employer are of a unique and special character, and any breach of
Sections 5, 6, or 7 will cause Employer immediate and irreparable
injury and damage, for which monetary relief would be inadequate or
difficult to quantify. Employer will be entitled to, in addition to
all other remedies available to it, injunctive relief and specific
performance to prevent a breach and to secure the enforcement of
Sections 5, 6, or 7. Executive acknowledges that injunctive relief
may be granted immediately upon the commencement of any such action
without notice to Executive and in addition may recover monetary
damages. In the event a court requires posting of a bond, the
parties agree to a maximum $5,000 bond. Executive further
acknowledges that his duties under this Agreement shall survive
termination of his employment, whether the termination is voluntary
or involuntary, rightful or wrongful, and shall continue until
Employer consents in writing to the release of Executive’s
obligations under this Agreement. The parties further agree that
the provisions of Sections 5, 6, and 7 are separate from and
independent of the remainder of this Agreement and that these
provisions are specifically enforceable by Employer notwithstanding
any claim made by Executive against Employer.
12.
Attorney’s Fees .
In the event Executive breaches, or threatens to breach, any
provision of this Agreement, Executive acknowledges that he shall
be solely and fully responsible for all fees and costs, including
without limitation, all attorney’s fees and costs, incurred
by Employer in enforcing this Agreement if Employer is the
prevailing party in any litigation.
13.
Entire Agreement; Amendments .
This Agreement (including all exhibits) constitute the entire
understanding between the parties with respect to the subject
matter herein and therein, and they supersede any prior or
contemporaneous understandings or agreements. This Agreement may be
amended, supplemented, or terminated only by a written instrument
duly executed by each of the parties.
14.
Headings .
The headings in this Agreement are for convenience of reference
only and shall not affect its interpretation. References to
Sections are to Sections hereof.
15.
Gender; Number .
Words of gender may be read as masculine, feminine, or neuter, as
required by context. Words of number may be read as singular or
plural, as required by context.
16.
Severability .
The covenants in this Agreement shall be construed as independent
of one another, and as obligations distinct from one another and
any other contract between Executive and Employer. If any provision
of this Agreement is held illegal, invalid, or unenforceable, such
illegality, invalidity, or unenforceability shall not affect any
other provisions hereof. It is the intention of the parties that in
the event any provision is held illegal, invalid, or unenforceable,
that such provision be limited so as to effect the intent of the
parties to the fullest extent permitted by applicable law. Any
claim by Executive against Employer shall not constitute a defense
to enforcement by Employer of this Agreement.
17.
Survival .
The provisions of Sections 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 16,
17, 18, 19, 20, 21 and 22 shall survive the termination of this
Agreement.
18.
Notices .
All notices, demands, waivers, consents, approvals, or other
communications required hereunder shall be in writing and shall be
deemed to have been given if delivered personally, if sent by
facsimile with confirmation of receipt, if sent by certified or
registered mail, postage prepaid, return receipt requested, or if
sent by same day or overnight courier service to the following
addresses:
If
to Employer, to:
Capital
Gold Corporation
76
Beaver Street, 26
th Floor
New
York, New York 10005
Attention:
Gifford A. Dieterle
Telephone:
(212) 344-2785
Facsimile:
(212) 344-4537
If
to Executive, to:
J.
Scott Hazlitt
9428
W. Highway 50
Salida.
CO 81201
Telephone:
(719) 539-0515
Facsimile:
(719) 539-0510
Notice
of any change in any such address shall also be given in the
manner set forth above. Whenever the giving of notice is
required, the giving of such notice may be waived by the party
entitled to receive such notice.
19.
Waiver .
The failure of any party to insist upon strict performance of any
of the terms or conditions of this Agreement shall not constitute a
waiver of any of such party’s rights hereunder.
20.
Assignment .
Other than as provided below, neither party may assign any rights
or delegate any of obligations hereunder without the prior written
consent of the other party, and such purported assignment or
delegation shall be void; provided that Employer may assign the
Agreement to any entity that purchases the stock or assets of, or
merges with, Employer or any Affiliate. This Agreement binds,
inures to the benefit of, and is enforceable by the successors and
permitted assigns of the parties and does not confer any rights on
any other persons or entities.
21.
Governing Law .
This Agreement shall be construed and enforced in accordance with
New York law except for any New York conflict-of-law principle that
might require the application of the laws of another
jurisdiction.
22.
Submission to Jurisdiction: Service: Waivers
. With respect to any claim arising out of this Agreement, each
party hereto (a) irrevocably submits, for itself and its property,
to the jurisdiction of the state court located in the City and
County of New York, New York, the federal court located in New
York, New York, and appellate courts therefrom, (b) agrees that the
venue for any suit, action or proceeding arising out of or relating
to this Agreement shall be exclusive to and limited to such courts,
and (c) irrevocably waives any objection it may have at any time to
the laying of venue of any suit, action or proceeding arising out
of or relating to this Agreement brought in any such court,
irrevocably waives any claim that any such suit, action or
proceeding brought in any such court has been brought in an
inconvenient forum and further irrevocably waives the right to
object, with respect to such claim, suit, action or proceeding
brought in any such court that such court does not have
jurisdiction over it. Each party irrevocably consents to the
service of process in any suit, action or proceeding in any of the
aforesaid courts by the mailing of copies of process to the other
party or parties hereto, by certified or registered mail at the
address specified in Section 18.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the parties have executed this Agreement on
the date first above written.
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CAPITAL GOLD CORPORATION |
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By: |
s/ Gifford A.
Dieterle |
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