Exhibit 10.29
SEVERANCE
AGREEMENT
THIS
AGREEMENT is dated as of November 7 , 2006.
WESTERN GOLDFIELDS (CANADA) INC.,
a corporation incorporated under the
laws of the Province of Ontario (hereinafter called the
"Corporation")
OF THE FIRST PART
- and -
RANDALL
OLIPHANT (hereinafter
called the "Executive")
OF THE SECOND PART
WHEREAS the Executive is an employee of the Corporation
and is considered by the Board of Directors of the Corporation to
be a valued employee that has devoted his ability, time, effort and
energy to the affairs of the Corporation;
AND WHEREAS the Corporation considers the continuance of a
sound and vital management to be essential to protecting and
enhancing the best interests of the Corporation and its
shareholders;
AND WHEREAS the Corporation desires to assure itself of
retaining the services of the Executive (including his services
without distraction by uncertainties and risks in the event of a
proposed change of control of the Corporation) and to reward the
Executive for his valuable, dedicated service to the Corporation,
should his service terminate under the circumstances hereinafter
described;
NOW THEREFORE THIS AGREEMENT
WITNESSETH that in
consideration of the mutual covenants herein contained and in
consideration of the Executive remaining in the employment of the
Corporation at the present time, it is hereby agreed as
follows:
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(a)
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"Agreement" means this Agreement as amended from time to
time;
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(b)
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"Annual Compensation" shall mean an amount equal to Executive's annual
base salary at the annual rate in effect at his Date of
Termination, the Target Bonus plus all benefits, quantified as 10%
of the Executive's annual base salary, paid or payable.
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“Board of Directors”
means the board of directors of the
Corporation as at the date of this Agreement.
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“Cause” shall mean termination of Executive’s
employment by the Corporation or any subsidiary thereof or
successor thereto, by reason of Executive’s:
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(i)
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gross negligence in the performance of his
duties;
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(ii)
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wilful and continued failure to substantially
perform his duties determined on a historic basis prior to a Change
of Control with the Corporation;
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(iii)
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wilful engagement in conduct which is materially
injurious to the Corporation or its subsidiaries (monetarily or
otherwise); or
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(iv)
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conviction of a criminal offence involving moral
turpitude.
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For purposes of this subparagraph 1(d) no act,
or failure to act, on Executive’s part shall be considered
“wilful” unless done intentionally, or intentionally
omitted by Executive not in good faith and without reasonable
belief that his action or omission was in the best interests of the
Corporation.
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“Change of Control”
means the occurrence of any one or
more of the following events:
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(i)
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the Corporation shall not be the surviving
entity in a merger, amalgamation or other reorganization (or
survives only as a subsidiary of an entity other than a previously
wholly-owned subsidiary of the Corporation);
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(ii)
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the Corporation sells, leases or exchanges
greater than 35% of its assets to any other person or entity (other
than a wholly-owned subsidiary of the Corporation);
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(iii)
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the Corporation is to be dissolved and
liquidated;
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(iv)
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any person, entity or group of persons or
entities acting jointly or in concert acquires or gains ownership
or control (including, without limitation, the power to vote) more
than 35% of the Corporation’s outstanding voting securities;
or
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(v)
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as a result of or in connection with: (A) the
contested election of directors, or; (B) a transaction referred to
in subparagraph 1(e)(i) above, the persons who were directors of
the Corporation before such election shall cease to constitute a
majority of the Board of Directors.
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(f)
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“Date
of Termination” means:
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(i)
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if Executive’s employment is terminated by
the Executive following a Triggering Event, the date specified in
the Notice of Termination provided by the Executive to the
Corporation; and
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(ii)
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if Executive’s employment is terminated
for any other reason, the date specified in the Notice of
Termination provided by the Corporation to the Executive, and shall
mean termination from active employment, and shall not include any
notice period.
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“Disability” means incapacity due to physical or mental
illness, which shall have caused Executive to have been absent
from, or unable to perform, the Executive’s duties with the
Corporation on a full-time basis for six consecutive
months.
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(h)
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“Notice of Termination”
shall mean notice which shall
indicate the specific termination provisions in this Agreement
relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of
Executive’s employment under the provisions so
indicated.
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(i)
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“Severance Amount”
shall mean an amount equal to 2
times the Executive’s Annual Compensation.
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(j)
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“Target Bonus”
shall mean an amount equal to the
previous year’s bonus granted to the Executive, but shall not
exceed 25% of the Executive’s annual base salary.
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“Triggering Event”
means any one of the following
events which occurs without the express agreement in writing of the
Executive:
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(i)
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a material adverse change in the salary or
benefits of the Executive as they exist immediately prior to the
Change of Control;
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(ii)
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a removal of the designation of Chairman in the
title of the Executive immediately prior to the Change of Control
or a material adverse change in the responsibilities, duties,
powers, rights and discretion associated with such
title;
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a change in the person or body to whom the
Executive reports immediately prior to the Change of Control,
except if such person or body is of equivalent rank or stature or
such change is as a result of the resignation or removal of such
person or the persons comprising such body, as the case may be,
provided that this shall not include a change resulting from a
promotion in the normal course of business; or
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(iv)
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a change in the location at which the Executive
is regularly required immediately prior to the Change of Control to
carry out the terms of his employment with the Corporation, which
is of a distance greater than 50 kilometers from the City of
Toronto, unless the terms of employment of the Executive include
the obligation to receive geographic transfers from time to time in
the normal course of business, or unless the Executive consents to
the change.
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The term of this Agreement shall commence on the
date hereof and continue for an indefinite term.
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3.
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Termination of Employment
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(a)
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Termination by the Corporation Without
Cause. The Corporation
shall be entitled to terminate Executive’s employment at any
time without Cause by giving the Executive a one-time payment equal
to the Executive’s Annual Compensation, plus an additional
one months’ worth of Annual Compensation for each completed
year of employment to a maximum of 18 months Annual Compensation.
Such lump sum cash payment is payable on or before the fifth day
following the Date of Termination. In addition, subject to the
receipt of all necessary regulatory approvals, the Corporation
shall permit any vested options to purchase common shares in the
capital of the Corporation held by Executives to be exercisable for
6 months after the Date of Termination. All options that have not
vested shall expire upon the Date of Termination. In the event of
termination of Executive’s employment without Cause, rights
and benefits of Executive under executive benefit plans and
programs of the Co
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