Silver Bull Resources, Inc 8-K, filed Feb 23, 2022
Silver Bull Resources, Inc. (SVBL)
About this 8-K
Silver Bull Resources, Inc filed this 8-K on February 23, 2022, reporting on events of February 17, 2022.
Items reported
- Item 5.02: Director or officer change, or executive pay
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
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Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).
Emerging growth company
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| Item 5.02 | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
(e) Compensatory Plan, Contract or Arrangement.
Consulting Agreement with Timothy Barry
On February 17, 2022, Silver Bull Resources, Inc. (“Silver Bull” or the “Company”) entered into a consulting agreement with Timothy Barry (the “CEO Consulting Agreement”) pursuant to which agreement Mr. Barry will continue to serve as the Chief Executive Officer of the Company.
Pursuant to the terms and conditions of the CEO Consulting Agreement, Mr. Barry will receive an annual fee of CDN$60,000 (the “CEO Consulting Fee”) and will be eligible to participate in the Company’s annual bonus plans during the term of the CEO Consulting Agreement, with a bonus target of up to 50% of the annual fee, or a target determined by the board of directors of the Company (the “Board”). In addition, Mr. Barry is eligible to participate in the Company’s Management Retention Bonus Plan. In the event that the CEO Consulting Agreement is terminated by the Company without cause or by Mr. Barry for “good reason” (as defined in the CEO Consulting Agreement), Mr. Barry is entitled to the following amounts, payable in a lump sum: (i) in the event that the CEO Consulting Agreement is terminated prior to January 1 2023, six months of the CEO Consulting Fee and (ii) in the event that the CEO Consulting Agreement is terminated on or after January 1, 2023, (A) 12 months of the CEO Consulting Fee plus (B) one month of the CEO Consulting Fee for each additional year of service from January 1, 2022, up to a maximum of 24 months of the CEO Consulting Fee, (C) plus a payment equal to a pro-rated portion of the annual cash bonus. If the Company terminates the CEO Consulting Agreement without cause within three months following a “change of control” (as defined in the CEO Consulting Agreement), Mr. Barry is entitled to 24 months of the CEO Consulting Fee plus a lump-sum payment equal to two times the annual cash bonus (such payment, the “CEO Change of Control Payment”). In addition, Mr. Barry has the right to terminate the CEO Consulting Agreement for any reason within six months following a “change of control” and receive the CEO Change of Control Payment from the Company. In addition, upon any termination pursuant to which Mr. Barry receives any of the CEO Change of Control Payments described above, Mr. Barry is further entitled to continued benefits provided under the Company’s insured standard benefit plan for a period of 12 months following such termination.
The foregoing description of the CEO Consulting Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the CEO Consulting Agreement, a copy of which is filed as Exhibit 10.1 to this Current Report on Form 8-K and incorporated herein by reference.
Amended Consulting Agreement with Darren Klinck
Also on February 17, 2022, the Company entered into an amended consulting agreement (the “President Consulting Agreement”) with the personal service corporation of Darren Klinck, Westcott Management Ltd. (“Westcott”), pursuant to which agreement Mr. Klinck continues to serve as the President of the Company.
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Pursuant to the terms and conditions of the President Consulting Agreement, Westcott will receive an annual fee of CDN$60,000 (the “President Consulting Fee”) and will be eligible to participate in the Company’s annual bonus plans during the term of the President Consulting Agreement, with a bonus target of up to 50% of the annual fee, or a target determined by the Board.
In addition, Westcott is entitled to the following retention amounts, subject to the Company reaching the applicable market capitalization targets by April 15, 2027: (i) CDN$500,000 if and when the Company’s market capitalization reaches at least CDN$250,000,000 for five consecutive trading days, (ii) CDN$500,000 if and when the Company’s market capitalization reaches at least CDN$500,000,000 for five consecutive trading days, and (iii) CDN$1,000,000 if and when the Company’s market capitalization reaches at least CDN$1,000,000,000 for five consecutive trading days (collectively, the “Retention Bonus”). In the event that the Company undergoes a “change of control” (as defined in the President Consulting Agreement) and the Company’s market capitalization at any point prior to such a “change in control” equals or exceeds CDN$250,000,000, Westcott will be entitled to a retention bonus equal to 0.2% of the applicable bid price less any Retention Bonus previously paid to Westcott.
In the event that the President Consulting Agreement is terminated by the Company without cause or by Westcott for “good reason” (as defined in the President Consulting Agreement), Wescott is entitled to the following amounts, payable in a lump sum: (i) in the event that the President Consulting Agreement is terminated prior to October 1, 2022, six months of the President Consulting Fee and (ii) in the event that the President Consulting Agreement is terminated on or after October 1, 2022, (A) 12 months of the President Consulting Fee, plus (B) one month of the President Consulting Fee for each additional year of service from October 1, 2021, up to a maximum of 24 months of the President Consulting Fee, plus (C) a payment equal to a pro-rated portion of the annual cash bonus. If the Company terminates the President Consulting Agreement without cause within three months following a “change of control,” Westcott is entitled to 24 months of the President Consulting Fee plus a lump-sum payment equal to two times the annual cash bonus (such payment, the “President Change of Control Payment”). In addition, Westcott has the right to terminate the President Consulting Agreement for any reason within six months following a “change of control” and receive the President Change of Control Payment from the Company. In addition, upon any termination pursuant to which Westcott receives any of the President Change of Control Payments described above, Westcott is further entitled to continued benefits provided under the Company’s insured standard benefit plan for a period of 12 months following such termination.
The foregoing description of the President Consulting Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the President Consulting Agreement, a copy of which is filed as Exhibit 10.2 to this Current Report on Form 8-K and incorporated herein by reference.
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Amended and Restated Employment Agreement with Christopher Richards
Also on February 17, 2022, the Company entered into an amended and restated employment agreement (the “CFO Employment Agreement”), effective as of January 1, 2022, with Christopher Richards and Arras Minerals Corp., whose shares were distributed to the Silver Bull shareholders in September 2021 (“Arras”), pursuant to which agreement Mr. Richards will continue to serve as the Chief Financial Officer of the Company.
The CFO Employment Agreement provides for a base salary of CDN$240,000. Of this annual salary, the Company is responsible for CDN$60,000 (the “Company Base Salary”), with Arras paying the remaining CDN$180,000. Mr. Richards is eligible to participate in the Company’s annual bonus plan with a target bonus of up to 50% of the Company Base Salary. Mr. Richards is further eligible to participate in the Company’s stock option and stock bonus plan, as well as any employee benefit plans maintained by the Company. If Mr. Richards is terminated without “cause” or resigns for “good reason” (as such terms are defined in the CFO Employment Agreement), he will be entitled to receive a lump-sum payment equal to 12 months of the Company Base Salary plus a pro-rated portion of the annual bonus. If the Company terminates Mr. Richards without cause within three months of a “change of control” (as defined in the CFO Employment Agreement) or if Mr. Richards resigns with good reason within six months of a change of control, Mr. Richards is entitled to a lump sum payment equal to 24 months of the Company Base Salary and two times the average annual bonus previously paid to Mr. Richards.
The foregoing description of the CFO Employment Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the CFO Employment Agreement, a copy of which is filed as Exhibit 10.3 to this Current Report on Form 8-K and incorporated herein by reference.
Amendment to Management Retention Bonus Plan
Also on February 17, 2022, the Board approved an amendment (the “Plan Amendment”) to the previously announced Silver Bull Resources, Inc. Management Retention Bonus Plan (the “Management Retention Bonus Plan”), which plan was adopted and approved by the Board on April 15, 2021. The Plan Amendment modified certain provisions of the Management Retention Bonus Plan, which provides that the Company will pay certain cash bonuses to the named executive officers of Silver Bull upon the Company (i) reaching certain market capitalization targets or (ii) being subject to a successful takeover bid. Pursuant to and subject to the terms of the Plan Amendment, among other things,
| · | the trigger for cash bonuses based on a “successful takeover bid” was replaced with one based on a “change of control,” which generally includes (i) a sale or other disposition of all or substantially all of the Company’s assets; (ii) certain consolidation, merger or reorganization transactions involving the Company; (iii) a transaction or series of related transactions pursuant to which a person, entity or group acquires beneficial ownership of Company securities representing at least 50% of the combined voting power entitled to vote in the election of directors; or (iv) a transaction or series of related transactions meeting certain criteria that result in the resignation or replacement of one-half or more of the members of the Board or the resignation or termination of the Chief Executive Officer of the Company; and |
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| · | in the provision that allows for the settlement of any cash bonus through the issuance of shares if the Company lacks sufficient funds to pay such cash bonus, the calculation of the number of shares to be issued was changed from (i) a 20-trading day volume-weighted average price as of the day prior to the issuance of such shares, less 5.0% to (ii) the five-day trading volume-weighted average price up to the day before the issuance of such shares. |
The foregoing description of the Plan Amendment does not purport to be complete and is qualified in its entirety by reference to the full text of the Plan Amendment, a copy of which is filed as Exhibit 10.4 to this Current Report on Form 8-K and incorporated herein by reference.
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits.
+ Indicates a management contract or compensatory plan, contract or arrangement.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Silver Bull resources, inc. | ||
| Date: February 23, 2022 | By: | /s/ Christopher Richards |
| Name: | Christopher Richards | |
| Title: | Chief Financial Officer | |
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Exhibit 10.1
CONSULTING AGREEMENT
THIS AGREEMENT made as of the 17th of February 2022.
BETWEEN: SILVER BULL RESOURCES, INC.
(the "Corporation" or “Silver Bull”)
OF THE FIRST PART
| AND: | TIMOTHY BARRY |
(the "Consultant")
OF THE SECOND PART
WHEREAS:
| A. | The Corporation wishes to engage the Consultant to provide management consulting services to the Corporation in connection with the mineral exploration and management activities of the Corporation on its current and future mineral properties in which the Corporation has an ownership or optioned interest (the “Properties”); and |
| B. | The Corporation and the Consultant wish to specify the terms of the engagement herein. |
NOW THEREFORE, IN CONSIDERATION OF the covenants and agreements contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
| 1. | Relationship and Duties |
| 1.1 | Subject always to the general control and direction of the Corporation, the Consultant shall act and be retained to act, during the term of this Agreement, as a consultant to the Corporation or any subsidiary or subsidiaries of the Corporation, pursuant to the terms and conditions contained herein and as further particularized in this Section 1. |
| 1.2 | The Consultant agrees that (a) it shall act as Chief Executive Officer (“CEO”) and perform the Services of such a position for Corporation (as described in Schedule A); (b) he shall devote his best efforts, skills and attention to the performance of his duties and responsibilities in respect of the offices of the Corporation or any of its subsidiaries to which he is appointed; and (c) any business that the Consultant proposes to undertake outside of the consultancy contemplated which could potentially overlap with Silver Bull’s work with particular focus in Mexico shall require pre-approval of the Board of Directors of the Corporation. |
| 1.3 | The Consultant's duties will generally be to provide the Corporation with managerial services and assistance in its mineral exploration activities and to perform duties and responsibilities assigned to it from time to time by the Board of Directors of the Corporation and to cause the Consultant to discharge such duties as are commensurate with the Consultant’s position with the Corporation (collectively, the "Services"). |
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| 1.4 | The Consultant shall perform the Services to the best of its ability and in a responsible, professional manner commensurate with its experience, expertise and within acceptable industry standards and shall devote as much time and resources to its performance of the Services as is required to achieve such standards which are envisioned to be non-exclusive. The Corporation understands that the Consultant may have other clients (including Arras Minerals Corp.) as is consistent with a consultant rather than an employee. The Consultant shall promote the interest and goodwill of the Corporation. |
| 1.5 | The Consultant shall provide the Services as an independent contractor. The Consultant shall not be deemed to be, or represent themselves as, a representative or agent of the Corporation, except as expressly provided in writing by the Corporation and is consistent with the title of the position(s) held. |
| 1.6 | The Consultant shall comply with all applicable statutes and regulations and the lawful requirements and directions of any governmental authority having jurisdiction with respect to the Services it provides including the obtaining of all necessary permits and licences. |
| 1.7 | The Consultant shall refer to the Board of Directors of the Corporation all matters and transactions in which a real or perceived conflict of interest between the Consultant and the Corporation or any of its subsidiaries may arise. The Consultant shall not proceed with any such matter objected to by the Board of Directors of the Corporation. |
| 2. | Term of Agreement |
| 2.1 | The term of this Agreement shall be effective from January 1, 2022 (the “Effective Date”) and shall continue until this Agreement is terminated in accordance with Section 3 of this Agreement. |
| 3. | Termination |
| 3.1 | The Consultant may terminate their engagement with the Corporation by giving not less than ninety (90) days written notice to the Corporation. At the time the Consultant provides the Corporation with notice to terminate the engagement, or at any time thereafter, the Corporation shall have the right to elect to terminate the Consultant’s engagement at any time prior to the effective date of the Consultant’s last day, and upon such election, shall provide to the Consultant a lump sum payment equal to the pro-rata Annual Fee then in effect for the number of days that remain outstanding to the effective date of the Consultant’s last day of service. |
| 3.2 | Termination by Corporation Without Cause. The Consultant may at any time terminate its agreement with the Corporation for “Good Reason”, and the Corporation may at any time terminate the Consultant’s agreement without Cause and without any advance notice, and upon such cessations of the engagement (but excluding any Change of Control Terminations as set out in Section 3.7 of the Agreement), the Corporation may terminate this Agreement without Cause at any time by providing the Consultant with written notice of termination and a lump sum payment equal to: |
| (A) | Six (6) months of the Monthly Fee if the Consultant’s engagement agreement is terminated within the first year from the Effective Date; or |
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| (B) | After one (1) year from the Effective Date, twelve (12) months of the Monthly Fee, plus one (1) month’s monthly fee for each additional year of engagement from the Effective Date, up to a maximum of twenty-four (24) month’s Monthly Fee plus a pro-rata cash bonus using the annual performance bonus as outlined in Section 4.2. |
| (C) | If the Corporation terminates this Agreement without Cause within three (3) months of a Change of Control of the Corporation, the Corporation must pay the Consultant twenty-four (24) months of Monthly fee plus a lump sum payment equal to two (2) annual cash bonuses calculated utilizing the annual performance bonus outlined in Section 4.2 at the time of termination. |
| (D) | If Termination falls under Section 3.2(a),(b),(c) or 3.3 then the Corporation will continue the benefits provided under any insured standard benefit plan provided by the Corporation for twelve (12) months from the date of the termination, provided the Corporation is able to do so under the terms of the plan (with any continuation of benefits being subject to the terms and conditions of the plan provider); |
| 3.3 | Termination By Consultant Following a Change of Control. With Good Reason, the Consultant may elect, within six (6) months of a Change of Control of the Corporation to terminate their engagement and this Agreement upon providing written notice of termination to the Corporation. Upon receipt of such notice of termination in accordance with this, the Corporation must pay the Consultant twenty-four (24) months of the Monthly Fee plus a lump sum payment equal to two (2) annual cash performance bonuses outlined in Section 4.2 at the time of termination. |
| 3.4 | Termination by the Corporation for Fundamental Breach. Notwithstanding any other provision of this Agreement, the Corporation may on written notice to the Consultant immediately terminate this Agreement with the Corporation at any time for Fundamental Breach, without notice or pay in lieu of notice or any other form of compensation, severance pay or damages resulting from, without limitation, fraud, dishonesty, illegality, breach of statute or regulation, gross incompetence or misuse of alcohol or drugs. |
| 3.5 | Directorship and Offices. Upon the termination of the Agreement between the Consultant and the Corporation, the Consultant shall immediately resign any directorship or office held in the Corporation or any respective parent, subsidiary or affiliated companies of the Corporation and, except as provided in this Agreement, the Consultant shall not be entitled to receive any written notice of termination or payment in lieu of notice, or to receive any severance pay, damages or compensation for loss of office or otherwise, by reason of the resignation or resignations referred to in this Section 3. |
| 3.6 | Annual Bonus Upon Termination. The Consultant’s participation in any and all annual bonus plans shall cease immediately on the date the Consultant receives or gives notice of termination of this Agreement and the Consultant shall only be entitled to receive any Annual Bonus pro-rated to the date the Consultant receives notice of termination without cause. |
| 3.7 | No Additional Payments. The Consultant acknowledges and agrees that unless otherwise expressly agreed in writing between the Consultant and the Corporation, the Consultant shall not be entitled, by reason of the Consultant’s relationship with the Corporation or by reason of any termination of their agreement by the Corporation, for any reason, to any remuneration, compensation or other benefits other than those expressly provided for in this Agreement. The Consultant further acknowledges and agrees that any amounts paid to the Consultant pursuant to this Section 3 are inclusive of any amounts that may be payable under any statute of Canada in respect of compensation for length of service, notice of termination or severance pay. |
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| 4. | Consultant's Fees and Benefits |
| 4.1 | Subject to Section 1.1 and any adjustments on an annual review, the Consultant shall be remunerated for providing the Services during the term of this Agreement by payment of a “Monthly Fee” of C$5,000 equalling C$60,000 per year (the “Annual Fee”). |
| 4.2 | In addition to the Annual Fee, the consultant shall be eligible to participate in the Corporation’s annual performance bonus (the “Bonus”) of up to fifty (50) percent of the Annual Fee, or a target amount as determined by the Board of Directors. The amount of the Bonus shall be determined by the Board of Directors, in its sole discretion, based on certain financial and operating goals and individual performance objectives as defined by the Board of Directors in its sole discretion. The Consultant acknowledges that there is no assurance that any Bonus will be paid in any given year, that the Bonus arrangements will remain unchanged or that the Bonus will be of the same amount in any future year as in any past year. Subject to the requirements of Section 3 of this Agreement, in the event the Consultant gives or receives notice of termination of engagement, all entitlement to receive a Bonus shall cease (except for: Bonuses that have already been paid to the Consultant by the Corporation; any Bonuses that have been awarded to the Consultant by the Corporation in respect of an already completed financial year of the Corporation but which have not yet been paid by the Corporation to the Consultant; and Bonuses that have been earned by the Consultant but not paid to the Consultant by the Corporation however, in this latter instance, the Bonus shall be paid on a pro rata basis, up to but not beyond the termination date, based on the financial and operating goals and individual performance objectives that had been set by the Board of Directors). |
| 4.3 | Retention Bonus. The Consultant will be eligible to participate in the Silver Bull Resources, Inc. Management Retention Plan, as approved by the Board of Directors on April 15, 2021, and as amended on February 17, 2022 (the “Silver Bull Retention Plan”). |
| (a) | Participation in the Silver Bull Retention Plan will be cancelled if and when this Agreement is terminated prior to any retention bonus becoming payable. |
| 4.4 | The Corporation shall pay for (or reimburse) the insurance plan premiums (including major medical, dental, term life, liability, and disability. |
| 4.5 | Taxes. The Consultant shall be responsible for remittance to the proper authorities of any and all income taxes, employment insurance or social security premiums and workers compensation insurance in relation to the Consultant’s remuneration hereunder, inclusive of the Annual Fee. The Consultant is and will be solely responsible for, and will file, on a timely basis, all tax returns and payments required to be filed with, or made to, any federal, state, provincial, or local tax authority with respect to the provision of services and receipt of fees under the Agreement. |
| (a) | The Corporation reserves the right to withhold local taxes (if any) for services rendered in Kazakhstan should it be required to do so by the Kazakhstan authorities. |
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| (b) | Taxation of a foreign individual in Kazakhstan depends on his/her tax residency status in Kazakhstan. Under Kazakh tax law, an individual is regarded as a tax resident of Kazakhstan for a particular tax year if the individual spends more than 183 days in Kazakhstan in any period of twelve consecutive months ending in that year. Otherwise, the individual is regarded as a non-resident for Kazakhstan tax purposes. Tax residents of Kazakhstan are subject to taxation in Kazakhstan on their worldwide income, while tax non-resident individuals are subject to tax only on their Kazakh-source income. Personal income tax rates in Kazakhstan currently amount to 10% but may be subject to change. All income that a foreign person receives for work performed in Kazakhstan is regarded as taxable Kazakh-source income, regardless of where the income is paid. This income includes salaries, wages and all types of fringe benefits that an employer provides to employees and consultants (i.e. airfare, pension contribution, accommodation or meals). The Corporation may be required to compute and withhold personal income tax and social tax on the Consultant’s payments on a monthly basis, remit the tax, and report these taxes on the Corporation’s quarterly payroll tax reports. |
| 4.6 | The Corporation will provide general liability protection and directors and officers liability protection and ensure that the Articles of Incorporation also provide general liability protection and indemnification for directors and officers as approved by the Board of Directors of the Corporation. |
| 5. | Reimbursement of Expenses |
| 5.1 | The Consultant shall be reimbursed for all direct out-of-pocket expenses actually, reasonably and properly incurred by it in connection with its provision of the Services and for the benefit of the business of the Corporation or its subsidiaries, provided such expenses are appropriately documented and reasonable. |
| 6. | Confidential Information |
| 6.1 | The Consultant acknowledges that, by reason of this Agreement, the Consultant will have access to Confidential Information of the Corporation that the Corporation has spent time, effort and money to develop and acquire. For the purposes of this Agreement any reference to the “Corporation” shall mean the Corporation, and such respective affiliates and subsidiaries as may exist from time to time. |
| 6.2 | The Consultant acknowledges that the Confidential Information is a valuable and unique asset of the Corporation and that the Confidential Information is and will remain the exclusive property of the Corporation. |
| 6.3 | The Consultant agrees to and will ensure that they will maintain securely and hold in strict confidence all Confidential Information received, acquired or developed by the Consultant or disclosed to the Consultant as a result of or in connection with the Management Consulting Agreement with the Corporation. The Consultant agrees that, both during its tenure with the Corporation and after the termination of the agreement, the Consultant will not, directly or indirectly, divulge, communicate, use, copy or disclose or permit others to use, copy or disclose, any Confidential Information to any person, except as such disclosure or use is required to perform his duties hereunder or as may be consented to by prior written authorization of the Corporation. |
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| 6.4 | The obligation of confidentiality imposed by this Agreement shall not apply to information that appears in issued patents or printed publications, that otherwise becomes generally known in the industry through no act of the Consultant in breach of this Agreement, or that is required to be disclosed by court order or applicable law. |
| 6.5 | The Consultant understands that the Corporation has from time to time in its possession information belonging to third parties or which is claimed by third parties to be confidential or proprietary and which the Corporation has agreed to keep confidential. The Consultant agrees that all such information shall be Confidential Information for the purposes of this Agreement. |
| 6.6 | The Consultant agrees that documents, copies, records and other property or materials made or received by the Consultant that pertain to the business and affairs of the Corporation, including all Confidential Information which is in the Consultant’s possession or under the Consultant’s control are the property of the Corporation and that the Consultant will return same and any copies of same to the Corporation immediately upon termination of the Consultant’s employment or at any time upon the request of the Corporation. |
| 7. | Restricted Activities |
| 7.1 | Restriction on Competition. The Consultant covenants and agrees with the Corporation that the Consultant will not, without the prior written consent of the Corporation, at any time during his employment or for a period of three (3) months following the termination of the Consultant’s engagement, for any reason, either individually or in partnership or in conjunction with any person, whether as principal, agent, shareholder, director, officer, employee, investor, or in any other manner whatsoever, directly or indirectly, advise, manage, carry on, be engaged in, own or lend money to, or permit the Consultant’s name or any part thereof to be used or employed by any person managing, carrying on or engaged in a business anywhere in the province of Coahuila, Mexico or other jurisdiction in which the Corporation is carrying on the business of mineral exploration which is in direct competition with the business of the Corporation. The restrictions set forth in this Section 7.1 shall terminate and shall not apply to the Consultant where the Management Consulting Agreement is terminated by the Corporation following a Change of Control. |
| 7.2 | Restriction on Solicitation. The Consultant shall not, at any time during their engagement or for a period of six (6) months after the termination of the Consultant’s engagement, for any reason, without the prior written consent of the Corporation, for his account or jointly with another, either directly or indirectly, for or on behalf of himself or any individual, partnership, corporation or other legal entity, as principal, agent, employee or otherwise, solicit, influence, entice or induce, attempt to solicit, influence, entice or induce: |
| (A) | any person who is employed by the Corporation to leave such employment; or |
| (B) | any person, firm or corporation whatsoever, who is or was, at any time in the last twelve (12) months of the Consultant’s engagement with the Corporation, a customer or supplier of the Corporation or any affiliate or subsidiary of the Corporation, to cease its relationship with the Corporation or any affiliate or subsidiary of the Corporation. |
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| 7.3 | Corporate Opportunities. During the term of this Agreement, the Consultant will offer to the Corporation any investment or other opportunity generally in the geographic area (in the province of Coahulia, Mexico, and the business in which the Corporation operates, of which he may become aware. If after 10 working days the Board of Directors of the Corporation refuses the opportunity to participate in the investment or venture, the Consultant is free to seek other alternatives only during his private time. |
| 7.4 | Restriction on Investments. The Consultant may make passive investments in public companies involved in industries in which the Corporation operates, provided any such investment does not exceed a 10% equity interest, unless the Consultant obtains consent to acquire an equity interest exceeding 10% by consent of the Board of Directors of the Corporation. |
| 8. | Enforcement |
| 8.1 | The Consultant acknowledges and agrees that the covenants and obligations under Sections 6 and 7 are reasonable, necessary and fundamental to the protection of the Corporation’s business interests, and the Consultant acknowledges and agrees that any breach of these Sections by the Consultant would result in irreparable harm to the Corporation and loss and damage to the Corporation for which the Corporation could not be adequately compensated by an award of monetary damages. Accordingly, the Consultant agrees that, in the event the Consultant violates any of the restrictions referred to in Sections 6 or 7, this shall be considered grounds for termination with no severance and the Corporation shall suffer irreparable harm and shall be entitled to preliminary and permanent injunctive relief and any other remedies in law or in equity which the court deems fit. |
| 9. | Severability |
| 9.1 | The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of any other provision or part hereof, and any invalid provision will be severable from this Agreement in whole or in part. |
| 10. | Notice |
| 10.1 | Any notice required or permitted to be given hereunder, shall be given by registered mail or by personal delivery or telecopy to the party for whom it is intended, addressed as indicated on the first page hereof or at such other address as the recipient party shall provide in writing to the delivering party. Any notice delivered personally or by telecopy to the party to whom it is addressed, shall be deemed to have been given and received on the day it is so delivered or, if such day is not a business day, then on the next business day following any such day. Any notice mailed shall be deemed to have been given and received on the fifth business day following the date of mailing. |
| 11. | Confidentiality of Agreement |
| 11.1 | The parties agree that this Agreement is confidential and shall remain so after its termination and that it or its contents shall not be divulged by any party without the consent in writing of the other party, with the exception of disclosure to personal advisors and any disclosure required by the laws of any jurisdiction in which the business of the Corporation or its subsidiaries is conducted or may be conducted in future or by the laws of any jurisdiction to which the Corporation or any of its associated or affiliated corporations are subject. |
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| 12. | Indemnity |
| 12.1 | The Corporation will indemnify the Consultant and save him harmless from and against: |
| (A) | any and all demands, costs, payments, assessments, claims or damages payable to any person for suits or claims or other actions made against the Corporation or the Consultant in connection with the Services rendered by the Consultant to the Corporation, |
| (B) | any and all demands, costs, payments, assessments, claims or damages claims arising from loss or damage to property, or injury to, or death of, any person or persons, and |
| (C) | such other liability of any nature or kind to which the Consultant may be subject, arising from or in any way out of the provision of Services by the Consultant under this Agreement. Such indemnity shall cover any and all liability of the Consultant, including all expenses, costs and legal fees incurred in connection therewith. Notwithstanding the foregoing, the foregoing indemnity shall not apply where a court of competent jurisdiction, in a final judgment that has become non-appealable, has determined that: |
| (ii) | the Consultant, in the course of performing the Services, has been negligent or dishonest, has engaged in willful misconduct, or has acted in bad faith or committed any fraudulent act; and |
| (iii) | the expenses, losses, claims, damages or liabilities, as to which indemnification is claimed, were directly caused by such negligence, dishonesty, willful misconduct, bad faith or fraud. |
| 12.2 | With respect to all demands, costs, payments, assessments, claims or damages payable to any authority for source deductions, goods and services tax, harmonized sales tax, and any other remittance obligations arising with respect to payment to the Consultant hereunder or on account of loss or damage to property, or injury to, or death of, any person or persons arising from or out of the provision of Services by the Consultant under this Agreement, the Consultant shall indemnify and save the Corporation harmless from and against any and all liability for such demands, costs, payments, assessments, loss, damage, injury or death, including any expenses, costs and legal fees incurred in connection therewith, expect for liability on account of loss or damage to property, or injury to, or death of, any person as may arise solely out of the Corporation’s negligence. |
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| 13. | Further Assurances |
| 13.1 | The parties hereto undertake to do, sign, execute and deliver such other things, deeds or documents accessory or useful for the purpose of giving full effect to this Agreement with signatures on the signature page. |
| 14. | Governing Law |
| 14.1 | This Agreement is governed by and is to be construed, interpreted and enforced in accordance with the laws of the Province of British Columbia, and the laws of Canada applicable therein. |
| 15. | Enurement |
| 15.1 | This Agreement enures to the benefit of and is binding upon the parties and their respective successors or assigns. |
| 16. | Entire Agreement |
| 16.1 | As of its date of execution, this Agreement constitutes the entire agreement between the parties and supersedes all prior agreements between the parties. The parties agree that there are no other collateral agreements or understandings between them except as provided in this Agreement. |
| 17. | Assignment |
| 17.1 | The Consultant may not assign this Agreement or provide the services of any individual or Corporation other than that stated above without the written consent of the Corporation. |
| 18. | Amendment |
| 18.1 | This Agreement may be amended only in writing by the parties hereto. |
| 19. | Interpretation |
| 19.1 | In this Agreement, a “business day” means a day other than Saturday, Sunday or a statutory holiday in the relevant jurisdiction. |
| 19.2 | All headings in this Agreement are for convenience only and shall not be used in the interpretation of this Agreement. |
| 20. | Survival |
| 20.1 | Sections 7.2, 10 and 11 shall survive the termination of this Agreement and shall continue in full force and effect according to their terms. Counterparts and Delivery by Facsimile |
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| 20.2 | This Agreement may be executed in any number of counterparts, each of which when executed and delivered is an original but all of which taken together will constitute one and the same instrument. Any party hereto may deliver an executed copy of this Agreement by facsimile |
IN WITNESS WHEREOF the parties hereto have duly executed this Agreement as of the date first above written.
| SILVER BULL RESOURCES, INC. | ) | |
| ) | c/s | |
| Per: | ) | |
| ) | ||
| /s/ Christopher Richards | ) | |
| Authorized Signatory | ) | |
| TIMOTHY BARRY | ) | |
| ) | c/s | |
| Per: | ) | |
| ) | ||
| /s/ Timothy Barry | ) | |
| Authorized Signatory | ) | |
| 10 |
SCHEDULE “A”
SERVICES
The Chief Executive Officer (the "CEO") primary role is to take overall supervisory and managerial responsibility for the day to day operations of the Corporation's business. Working closely with the President, the CEO will manage the Corporation in an effective, efficient and forward-looking way to fulfil the priorities, goals and objectives determined by the Board. The CEO aims to execute the strategic plans, budgets and responsibilities set out below, with a view to increasing shareholder value. The CEO reports to the Board.
Without limiting the foregoing, the CEO is responsible for the following:
(a) Develop and maintain the Corporation's goal to operate to the highest standards of the industry;
| (b) | Maintain and develop with the Board strategic plans for the Corporation and implement such plans to the best abilities of the Corporation; |
| (c) | Provide quality leadership to the Corporation's staff and ensure that the Corporation's human resources are managed properly; |
(d) Provide high-level policy options, orientations and discussions for consideration by the Board;
| (e) | Together with any special committee appointed for such purpose, maintain existing and develop new strategic alliances and consider possible merger or acquisition transactions with other mining companies which will be constructive for the Corporation's business and will help enhance shareholder value; |
| (f) | Provide support, co-ordination and guidance to various responsible officers and managers of the Corporation; |
| (g) | Implement, oversee and guide the investor relations program for the Corporation, which shall, among other things, ensure communications between the Corporation and major stakeholders, including and most importantly the Corporation's shareholders, are managed in an optimum way and are done in accordance with applicable securities laws; |
| (h) | Provide timely strategic, operational and reporting information to the Board and implement its decisions in accordance with good governance, with the Corporation's policies and procedures, and within budget; |
(i) Act as an entrepreneur and innovator within the strategic goals of the Corporation;
(j) Co-ordinate the preparation of an annual business plan or strategic plan;
(k) Ensure appropriate governance skills development and resources are made available to the Board;
| (l) | Implement workplace policies and procedures that ensure compliance with the provisions of this Manual by all the Corporation’s officers, directors, employees, customers and contractors; |
(l) Provide a culture of high ethics throughout the organization;
| (m) | Take primary responsibility for the administration of all of the Corporation's subareas and administrative practices. |
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SCHEDULE “B”
DEFINITIONS
The following terms shall have the following definitions:
| (a) | “Annual Fee” means equal to twelve (12) Monthly Fees |
| (b) | “Total Annual Compensation” means an Annual amount that is the combination of: |
| (i) | the Annual Fee as of the date the cessation of the Consultant’s engagement with the Corporation; and |
| (ii) | an amount equal to the annual average of Bonuses actually paid to the Consultant by the Corporation during the Consultant’s three (3) most recent years of engagement with the Corporation, or, if the Consultant has not been engaged for three (3) years with the Corporation since the Effective Date, an amount equal to the greater of the following amounts: |
| (A) | the annual average of Bonuses, if any, actually paid to the Consultant by the Corporation since the Effective Date; or |
(B) 50% of the Annual Fee in effect at the time of the Consultant’s cessation of engagement with the Corporation.
| (c) | “Board” means the Board of Directors of the Corporation; |
| (d) | “Change of Control” means the occurrence of one or more of the following events after the Effective Date of this Agreement: |
| (i) | a sale, lease or other disposition of all or substantially all of the assets of the Corporation, |
| (ii) | a consolidation or merger of the Corporation with or into any other corporation or other entity or person (or any other corporate reorganization) in which the shareholders of the Corporation immediately prior to such consolidation, merger or reorganization, own less than fifty percent (50%) of the outstanding voting power of the surviving entity (or its parent) following the consolidation, merger or reorganization; or |
| (iii) | a transaction or series or related transactions pursuant to which any person, entity or group within the meaning of Section 13(d) or 14(d) of the U.S. Securities Exchange Act of 1934 (“1934 Act”), or any comparable successor provisions (excluding any employee benefit plan, or related trust, sponsored or maintained by the Corporation or an affiliate) acquires beneficial ownership (within the meaning of Rule 13d-3 promulgated under the 1934 Act, or comparable successor rule) of securities of the Corporation representing at least fifty percent (50%) of the combined voting power entitled to vote in the election of directors; or |
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| (iv) | a transaction or series of transactions pursuant to which (A) (i) any person, entity or group within the meaning of Section 13(d) or 14(d) of the 1934 Act, or any comparable successor provisions (excluding any employee benefit plan, or related trust, sponsored or maintained by the Corporation or an affiliate) acquires beneficial ownership (within the meaning of Rule 13d-3 promulgated under the 1934 Act, or comparable successor rule) of securities of the Corporation representing at least twenty percent (20%) of the combined voting power entitled to vote in the election of directors or securities of the Corporation that, upon conversion or exchange of such securities, would represent at least twenty percent (20%) of the combined voting power entitled to vote in the election of directors, or (ii) a consolidation or merger of the Corporation with or into any other corporation or other entity or person (or any other corporate reorganization) in which the shareholders of the Corporation immediately prior to such consolidation, merger or reorganization, own less than eighty percent (80%) of the outstanding voting power of the surviving entity (or its parent) following the consolidation, merger or reorganization and (B) in connection with or as a result of such transaction or series of transactions, either (i) one-half (or more) of the members of the Board of Directors of the Corporation resign or are replaced with nominees designated by such person, entity or group or (ii) the Chief Executive Officer of the Corporation resigns or is terminated as a result of such transaction or series of transactions. |
| (e) | “Confidential Information” means all trade secrets, proprietary information and other data or information (and any tangible evidence, record or representation thereof), whether prepared, conceived or developed by an employee of the Corporation (including the Consultant) or received by the Corporation from an outside source which is maintained in confidence by the Corporation or any of its employees, contractors or customers including, without limitation: |
| (i) | any ideas, drawings, maps, improvements, know-how, research, geological records, drill logs, inventions, innovations, products, services, sales, scientific or other formulae, core samples, processes, methods, machines, procedures, tests, treatments, developments, technical data, designs, devices, patterns, concepts, computer programs or software, records, data, training or service manuals, plans for new or revised services or products or other plans, items or strategy methods on compilation of information, or works in process, or any inventions or parts thereof, and any and all revisions and improvements relating to any of the foregoing (in each case whether or not reduced to tangible form) that relate to the business or affairs of the Corporation or that result from its marketing, research and/or development activities; |
| (ii) | any information relating to the relationship of the Corporation with any personnel, suppliers, principals, investors, contacts or prospects of the Corporation and any information relating to the requirements, specifications, proposals, orders, contracts or transactions of or with any such persons; |
| (iii) | any marketing material, plan or survey, business plan, opportunity or strategy, development plan or specification or business proposal; |
| (iv) | financial information, including the Corporation’s costs, financing or debt arrangements, income, profits, salaries or wages; and |
| (v) | any information relating to the present or proposed business of the Corporation. |
| (f) | “Fundamental Breach” means any material breach of a fundamental term or condition of this Agreement and, without limiting the foregoing, includes any of the following acts or omissions: |
| (a) | the Consultant’s gross default or misconduct during the Consultant’s engagement in connection with or effecting the business of the Corporation; |
| (b) | the Consultant’s continued refusal or willful misconduct to carry out the duties of his employment after receiving written notice from the Corporation of the failure to do so and having had an opportunity to correct same within a reasonable period of time from the date of receipt of such notice; |
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| (c) | theft, fraud, dishonesty, misconduct, or misuse of alcohol or drugs of the Consultant involving the property, business or affairs of the Corporation or in the carrying out of the duties of his employment; or |
| (d) | any material breach of this Agreement including any breach Sections 6,7 or 8 of this Agreement; |
| (g) | “Good Reason” means any of the following conduct by the Corporation: |
| (i) | a unilateral reduction to the Annual Fee; |
| (ii) | a unilateral reduction to the aggregate value of the Consultant’s remuneration and benefits other than Annual Fee; |
| (iii) | a unilateral material adverse change to the Consultant’s position, title, authority or responsibilities; or |
| (iv) | any reason which would be considered to amount to constructive dismissal pursuant to the common law. |
| (h) | “Person” means an individual, partnership, association, Corporation, body corporate, trustee, executor, administrator, legal representative and any national, provincial, state or municipal government; |
14
Exhibit 10.2
CONSULTING AGREEMENT
THIS AGREEMENT made as of the 1st of October 2021 the “Effective Date”) and amended on 17th of February 2022 the “Amended Date”.
BETWEEN: SILVER BULL RESOURCES, INC.
(the "Corporation" or “Silver Bull”)
OF THE FIRST PART
| AND: | WESTCOTT MANAGEMENT LTD. |
(the "Consultant")
OF THE SECOND PART
WHEREAS:
| A. | The Corporation wishes to engage the Consultant to provide management consulting services to the Corporation in connection with the mineral exploration and management activities of the Corporation on its current and future mineral properties in which the Corporation has an ownership or optioned interest (the “Properties”); and |
| B. | The Corporation and the Consultant wish to specify the terms of the engagement herein. |
NOW THEREFORE, IN CONSIDERATION OF the covenants and agreements contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
| 1. | Relationship and Duties |
| 1.1 | Subject always to the general control and direction of the Corporation, the Consultant shall act and be retained to act, during the term of this Agreement, as a consultant to the Corporation or any subsidiary or subsidiaries of the Corporation, pursuant to the terms and conditions contained herein and as further particularized in this Section 1. |
| 1.2 | The Consultant agrees that (a) it shall act as President and perform the Services of such a position for Corporation (as described in Schedule A); (b) it shall cause the Consultant’s Representative to devote his best efforts, skills and attention to the performance of his duties and responsibilities in respect of the offices of the Corporation or any of its subsidiaries to which he is appointed; and (c) any business that the Consultant or the Consultant’s representative propose to undertake outside of the consultancy contemplated which could potentially overlap with Silver Bull’s work with particular focus in Mexico shall require pre-approval of the Board of Directors of the Corporation. |
| 1.3 | The Consultant acknowledges that the Consultant’s Representative shall be appointed by the Corporation as President of the Corporation and to hold such other offices as the Corporation and Consultant deem appropriate. |
| 1 |
| 1.4 | The Consultant's duties will generally be to provide the Corporation with managerial services and assistance in its mineral exploration activities and to perform duties and responsibilities assigned to it from time to time by the CEO & Board of Directors of the Corporation and to cause the Consultant’s Representative to discharge such duties as are commensurate with the Consultant’s Representative’s position with the Corporation (collectively, the "Services"). |
| 1.5 | The Consultant shall (and shall cause the Consultant’s Representative to) perform the Services to the best of its ability and in a responsible, professional manner commensurate with its experience, expertise and within acceptable industry standards and shall devote as much time and resources to its performance of the Services as is required to achieve such standards which are envisioned to be non-exclusive. The Corporation understands that Westcott Management Ltd. may have other clients (including Arras Minerals Corp.) as is consistent with a consultant rather than an employee. The Consultant shall promote the interest and goodwill of the Corporation. |
| 1.6 | The Consultant shall provide the Services as an independent contractor. The Consultant and the Consultant’s Representative shall not be deemed to be, or represent themselves as, a representative or agent of the Corporation, except as expressly provided in writing by the Corporation and is consistent with the title of the position(s) held. |
| 1.7 | The Consultant shall comply with all applicable statutes and regulations and the lawful requirements and directions of any governmental authority having jurisdiction with respect to the Services it provides including the obtaining of all necessary permits and licences. |
| 1.8 | The Consultant shall refer to the CEO & Board of Directors of the Corporation all matters and transactions in which a real or perceived conflict of interest between the Consultant and the Corporation or any of its subsidiaries may arise. The Consultant shall not proceed with any such matter objected to by the CEO or Board of Directors of the Corporation. |
| 1.9 | For the purposes of this Agreement the “Consultant’s Representative” is Darren Klinck. |
| 2. | Term of Agreement |
| 2.1 | The term of this Agreement shall be effective from October 1, 2021 (the “Effective Date”) and shall continue until this Agreement is terminated in accordance with Section 3 of this Agreement. |
| 3. | Termination |
| 3.1 | The Consultant may terminate their engagement with the Corporation by giving not less than ninety (90) days written notice to the Corporation. At the time the Consultant provides the Corporation with notice to terminate the engagement, or at any time thereafter, the Corporation shall have the right to elect to terminate the Consultant’s engagement at any time prior to the effective date of the Consultant’s last day, and upon such election, shall provide to the Consultant a lump sum payment equal to the pro-rata Annual Fee then in effect for the number of days that remain outstanding to the effective date of the Consultant’s last day of service. |
| 2 |
| 3.2 | Termination by Corporation Without Cause. The Consultant may at any time terminate its agreement with the Corporation for “Good Reason”, and the Corporation may at any time terminate the Consultant’s agreement without Cause and without any advance notice, and upon such cessations of the engagement (but excluding any Change of Control Terminations as set out in Section 3.3 of the Agreement), the Corporation may terminate this Agreement without Cause at any time by providing the Consultant with written notice of termination and a lump sum payment equal to: |
| (A) | Six (6) months of the Monthly Fee if the Consultant’s engagement agreement is terminated within the first year from the Effective Date; or |
| (B) | After one (1) year from the Effective Date, twelve (12) months of the Monthly Fee, plus one (1) month’s monthly fee for each additional year of engagement from the Effective Date, up to a maximum of twenty-four (24) month’s Monthly Fee plus a pro-rata cash bonus using the annual performance bonus as outlined in Section 4.2. |
| (C) | If the Corporation terminates this Agreement without Cause within three (3) months of a Change of Control of the Corporation, the Corporation must pay the Consultant twenty-four (24) months of Monthly fee plus a lump sum payment equal to two (2) annual cash bonuses calculated utilizing the annual performance bonus outlined in Section 4.2 at the time of termination. |
| (D) | If Termination falls under Section 3.2(a),(b),(c) or 3.3 then the Corporation will continue the benefits provided under any insured standard benefit plan provided by the Corporation for twelve (12) months from the date of the termination, provided the Corporation is able to do so under the terms of the plan (with any continuation of benefits being subject to the terms and conditions of the plan provider); |
| 3.3 | Termination By Consultant Following a Change of Control. With Good Reason, the Consultant may elect, within six (6) months of a Change of Control of the Corporation to terminate their engagement and this Agreement upon providing written notice of termination to the Corporation. Upon receipt of such notice of termination in accordance with this, the Corporation must pay the Consultant twenty-four (24) months of the Monthly Fee plus a lump sum payment equal to two (2) annual cash performance bonuses outlined in Section 4.2 at the time of termination.. |
| 3.4 | Termination by the Corporation for Fundamental Breach. Notwithstanding any other provision of this Agreement, the Corporation may on written notice to the Consultant immediately terminate this Agreement with the Corporation at any time for Fundamental Breach, without notice or pay in lieu of notice or any other form of compensation, severance pay or damages resulting from, without limitation, fraud, dishonesty, illegality, breach of statute or regulation, gross incompetence or misuse of alcohol or drugs. |
| 3 |
| 3.5 | Directorship and Offices. Upon the termination of the Agreement between the Consultant and the Corporation, the Consultant shall immediately resign any directorship or office held in the Corporation or any respective parent, subsidiary or affiliated companies of the Corporation and, except as provided in this Agreement, the Consultant shall not be entitled to receive any written notice of termination or payment in lieu of notice, or to receive any severance pay, damages or compensation for loss of office or otherwise, by reason of the resignation or resignations referred to in this Section 3. |
| 3.6 | Annual Bonus Upon Termination. The Consultant’s participation in any and all annual bonus plans shall cease immediately on the date the Consultant receives or gives notice of termination of this Agreement and the Consultant shall only be entitled to receive any Annual Bonus pro-rated to the date the Consultant receives notice of termination without cause. |
| 3.7 | No Additional Payments. The Consultant acknowledges and agrees that unless otherwise expressly agreed in writing between the Consultant and the Corporation, the Consultant shall not be entitled, by reason of the Consultant’s relationship with the Corporation or by reason of any termination of their agreement by the Corporation, for any reason, to any remuneration, compensation or other benefits other than those expressly provided for in this Agreement. The Consultant further acknowledges and agrees that any amounts paid to the Consultant pursuant to this Section 3 are inclusive of any amounts that may be payable under any statute of Canada in respect of compensation for length of service, notice of termination or severance pay. |
| 4. | Consultant's Fees and Benefits |
| 4.1 | Subject to Section 1.1 and any adjustments on an annual review, the Consultant shall be remunerated for providing the Services during the term of this Agreement by payment of a “Monthly Fee” of C$5,000 plus GST equalling C$60,000 per year (the “Annual Fee”) + GST. |
| 4.2 | In addition to the Annual Fee, the consultant shall be eligible to participate in the Corporation’s annual performance bonus (the “Bonus”) of up to fifty (50) percent of the Annual Fee, or a target amount as determined by the Board of Directors. The amount of the Bonus shall be determined by the Board of Directors, in its sole discretion, based on certain financial and operating goals and individual performance objectives as defined by the Board of Directors in its sole discretion. The Consultant acknowledges that there is no assurance that any Bonus will be paid in any given year, that the Bonus arrangements will remain unchanged or that the Bonus will be of the same amount in any future year as in any past year. Subject to the requirements of Section 3 of this Agreement, in the event the Consultant gives or receives notice of termination of engagement, all entitlement to receive a Bonus shall cease (except for: Bonuses that have already been paid to the Consultant by the Corporation; any Bonuses that have been awarded to the Consultant by the Corporation in respect of an already completed financial year of the Corporation but which have not yet been paid by the Corporation to the Consultant; and Bonuses that have been earned by the Consultant but not paid to the Consultant by the Corporation however, in this latter instance, the Bonus shall be paid on a pro rata basis, up to but not beyond the termination date, based on the financial and operating goals and individual performance objectives that had been set by the Board of Directors). |
| 4 |
| 4.3 | Retention Bonus. The Consultant will be eligible to receive C$500,000 (all funds hereafter are C$) when and if the Corporation’s market capitalization reaches at least $250,000,000 for 5 consecutive trading days being 0.2% of such market capitalization. For the purposes of this section, “market capitalization” shall be calculated using the prevailing share price multiplied by the shares outstanding. |
| (a) | In addition, the Corporation agrees to pay the Consultant a cash bonus of $500,000 when and if the Corporation’s market capitalization reaches at least $500,000,000 for 5 consecutive trading days being 0.2% of the Corporation’s market capitalization appreciation from $250,000,000. |
| (b) | In addition, the Corporation agrees to pay the Consultant a cash bonus of $1,000,000 when and if the Corporation’s market capitalization reaches at least $1,000,000,000 for 5 consecutive trading days being 0.2% of the Corporation’s market capitalization appreciation from $500,000,000. |
| (c) | In the event that the Corporation is the subject of a “Change of Control”, the 0.2% Retention Bonus shall be paid if the market capitalization of the Corporation is equal to or greater than $250,000,000 at any point prior to the closing of the transaction and be equal to 0.2% of the bid price less any 0.2% Retention Bonus that may have been previously paid. |
| (d) | The market capitalization targets (or successful takeover bid target) are to be achieved by April 15, 2027, in order for the Consultant to earn any of the bonus payments in the Section 4.3. Thereafter, no such bonuses will be payable. |
| (e) | Any Retention Bonus will be cancelled if and when this Agreement is terminated prior to the Retention Bonus becoming payable. |
| (f) | At the sole discretion of the Board of Directors, the Corporation shall not be obligated to pay a Retention Bonus in cash if it lacks funds at the time. In lieu of cash, the Board of Directors may choose to settle any bonus debt by issuing and delivering shares of the Corporation for such debt valued at the 5-day trading VWAP for the Corporation’s shares on the market calculated up to the day before the issue of the shares. |
| 4.4 | The Corporation shall pay for (or reimburse) the insurance plan premiums (including major medical, dental, term life, liability, and disability). |
| 4.5 | The Consultant will be responsible for submitting to the necessary tax offices any Goods and Services Tax (“GST”), Harmonized Sales Tax (“HST”), income or other taxes which may be applicable to the fees or benefits payable or deemed paid pursuant to this Section 4, including the Annual Fee. |
| 4.6 | The Corporation will provide general liability protection and directors and officers liability protection and ensure that the Articles of Incorporation also provide general liability protection and indemnification for directors and officers as approved by the Board of Directors of the Corporation. |
| 5. | Reimbursement of Expenses |
| 5.1 | The Consultant shall be reimbursed for all direct out-of-pocket expenses actually, reasonably and properly incurred by it in connection with its provision of the Services and for the benefit of the business of the Corporation or its subsidiaries, provided such expenses are appropriately documented and reasonable. |
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| 6. | Confidential Information |
| 6.1 | The Consultant acknowledges that, by reason of this Agreement, the Consultant will have access to Confidential Information of the Corporation that the Corporation has spent time, effort and money to develop and acquire. For the purposes of this Agreement any reference to the “Corporation” shall mean the Corporation, and such respective affiliates and subsidiaries as may exist from time to time. |
| 6.2 | The Consultant acknowledges that the Confidential Information is a valuable and unique asset of the Corporation and that the Confidential Information is and will remain the exclusive property of the Corporation. |
| 6.3 | The Consultant agrees to and will ensure that the Client’s Representative will maintain securely and hold in strict confidence all Confidential Information received, acquired or developed by the Consultant or disclosed to the Consultant as a result of or in connection with the Management Consulting Agreement with the Corporation. The Consultant agrees that, both during its tenure with the Corporation and after the termination of the agreement, neither the Consultant nor the Consultant’s Representative will, directly or indirectly, divulge, communicate, use, copy or disclose or permit others to use, copy or disclose, any Confidential Information to any person, except as such disclosure or use is required to perform his duties hereunder or as may be consented to by prior written authorization of the Corporation. |
| 6.4 | The obligation of confidentiality imposed by this Agreement shall not apply to information that appears in issued patents or printed publications, that otherwise becomes generally known in the industry through no act of the Consultant in breach of this Agreement, or that is required to be disclosed by court order or applicable law. |
| 6.5 | The Consultant understands that the Corporation has from time to time in its possession information belonging to third parties or which is claimed by third parties to be confidential or proprietary and which the Corporation has agreed to keep confidential. The Consultant agrees that all such information shall be Confidential Information for the purposes of this Agreement. |
| 6.6 | The Consultant agrees that documents, copies, records and other property or materials made or received by the Consultant that pertain to the business and affairs of the Corporation, including all Confidential Information which is in the Consultant’s possession or under the Consultant’s control are the property of the Corporation and that the Consultant will return same and any copies of same to the Corporation immediately upon termination of the Consultant’s employment or at any time upon the request of the Corporation. |
| 7. | Restricted Activities |
| 7.1 | Restriction on Competition. The Consultant covenants and agrees with the Corporation that neither the Consultant nor the Consultant’s Representative will, without the prior written consent of the Corporation, at any time during his employment or for a period of three (3) months following the termination of the Consultant’s engagement, for any reason, either individually or in partnership or in conjunction with any person, whether as principal, agent, shareholder, director, officer, employee, investor, or in any other manner whatsoever, directly or indirectly, advise, manage, carry on, be engaged in, own or lend money to, or permit the Consultant’s name or any part thereof to be used or employed by any person managing, carrying on or engaged in a business anywhere in the province of Coahuila, Mexico or other jurisdiction in which the Corporation is carrying on the business of mineral exploration which is in direct competition with the business of the Corporation. The restrictions set forth in this Section 7.1 shall terminate and shall not apply to the Consultant where the Management Consulting Agreement is terminated by the Corporation following a Change of Control. |
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| 7.2 | Restriction on Solicitation. The Consultant shall not, at any time during their engagement or for a period of six (6) months after the termination of the Consultant’s engagement, for any reason, without the prior written consent of the Corporation, for his account or jointly with another, either directly or indirectly, for or on behalf of himself or any individual, partnership, corporation or other legal entity, as principal, agent, employee or otherwise, solicit, influence, entice or induce, attempt to solicit, influence, entice or induce: |
| (A) | any person who is employed by the Corporation to leave such employment; or |
| (B) | any person, firm or corporation whatsoever, who is or was, at any time in the last twelve (12) months of the Consultant’s engagement with the Corporation, a customer or supplier of the Corporation or any affiliate or subsidiary of the Corporation, to cease its relationship with the Corporation or any affiliate or subsidiary of the Corporation. |
| 7.3 | Corporate Opportunities. During the term of this Agreement, the Consultant will offer to the Corporation any investment or other opportunity generally in the geographic area (in the province of Coahuila, Mexico, and the business in which the Corporation operates, of which he may become aware. If after 10 working days the Board of Directors of the Corporation refuses the opportunity to participate in the investment or venture, the Consultant is free to seek other alternatives only during his private time. |
| 7.4 | Restriction on Investments. The Consultant or the Consultant’s Representative may make passive investments in public companies involved in industries in which the Corporation operates, provided any such investment does not exceed a 10% equity interest, unless the Consultant obtains consent to acquire an equity interest exceeding 10% by consent of the Chief Executive Officer of the Corporation. |
| 8. | Enforcement |
| 8.1 | The Consultant acknowledges and agrees that the covenants and obligations under Sections 6 and 7 are reasonable, necessary and fundamental to the protection of the Corporation’s business interests, and the Consultant acknowledges and agrees that any breach of these Sections by the Consultant would result in irreparable harm to the Corporation and loss and damage to the Corporation for which the Corporation could not be adequately compensated by an award of monetary damages. Accordingly, the Consultant agrees that, in the event the Consultant violates any of the restrictions referred to in Sections 6 or 7, this shall be considered grounds for termination with no severance and the Corporation shall suffer irreparable harm and shall be entitled to preliminary and permanent injunctive relief and any other remedies in law or in equity which the court deems fit. |
| 9. | Severability |
| 9.1 | The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of any other provision or part hereof, and any invalid provision will be severable from this Agreement in whole or in part. |
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| 10. | Notice |
| 10.1 | Any notice required or permitted to be given hereunder, shall be given by registered mail or by personal delivery or telecopy to the party for whom it is intended, addressed as indicated on the first page hereof or at such other address as the recipient party shall provide in writing to the delivering party. Any notice delivered personally or by telecopy to the party to whom it is addressed, shall be deemed to have been given and received on the day it is so delivered or, if such day is not a business day, then on the next business day following any such day. Any notice mailed shall be deemed to have been given and received on the fifth business day following the date of mailing. |
| 11. | Confidentiality of Agreement |
| 11.1 | The parties agree that this Agreement is confidential and shall remain so after its termination and that it or its contents shall not be divulged by any party without the consent in writing of the other party, with the exception of disclosure to personal advisors and any disclosure required by the laws of any jurisdiction in which the business of the Corporation or its subsidiaries is conducted or may be conducted in future or by the laws of any jurisdiction to which the Corporation or any of its associated or affiliated corporations are subject. |
| 12. | Indemnity |
| 12.1 | The Corporation will indemnify the Consultant and save him harmless from and against: |
| (A) | any and all demands, costs, payments, assessments, claims or damages payable to any person for suits or claims or other actions made against the Corporation or the Consultant in connection with the Services rendered by the Consultant to the Corporation, |
| (B) | any and all demands, costs, payments, assessments, claims or damages claims arising from loss or damage to property, or injury to, or death of, any person or persons, and |
| (C) | such other liability of any nature or kind to which the Consultant may be subject, arising from or in any way out of the provision of Services by the Consultant under this Agreement. Such indemnity shall cover any and all liability of the Consultant, including all expenses, costs and legal fees incurred in connection therewith. Notwithstanding the foregoing, the foregoing indemnity shall not apply where a court of competent jurisdiction, in a final judgment that has become non-appealable, has determined that: |
| (ii) | the Consultant, in the course of performing the Services, has been negligent or dishonest, has engaged in willful misconduct, or has acted in bad faith or committed any fraudulent act; and |
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| (iii) | the expenses, losses, claims, damages or liabilities, as to which indemnification is claimed, were directly caused by such negligence, dishonesty, willful misconduct, bad faith or fraud. |
| 12.2 | With respect to all demands, costs, payments, assessments, claims or damages payable to any authority for source deductions, goods and services tax, harmonized sales tax, and any other remittance obligations arising with respect to payment to the Consultant hereunder or on account of loss or damage to property, or injury to, or death of, any person or persons arising from or out of the provision of Services by the Consultant under this Agreement, the Consultant shall indemnify and save the Corporation harmless from and against any and all liability for such demands, costs, payments, assessments, loss, damage, injury or death, including any expenses, costs and legal fees incurred in connection therewith, expect for liability on account of loss or damage to property, or injury to, or death of, any person as may arise solely out of the Corporation’s negligence. |
| 13. | Further Assurances |
| 13.1 | The parties hereto undertake to do, sign, execute and deliver such other things, deeds or documents accessory or useful for the purpose of giving full effect to this Agreement with signatures on the signature page. |
| 14. | Governing Law |
| 14.1 | This Agreement is governed by and is to be construed, interpreted and enforced in accordance with the laws of the Province of British Columbia, and the laws of Canada applicable therein. |
| 15. | Enurement |
| 15.1 | This Agreement enures to the benefit of and is binding upon the parties and their respective successors or assigns. |
| 16. | Entire Agreement |
| 16.1 | As of its date of execution, this Agreement constitutes the entire agreement between the parties and supersedes all prior agreements between the parties. The parties agree that there are no other collateral agreements or understandings between them except as provided in this Agreement. |
| 17. | Assignment |
| 17.1 | The Consultant may not assign this Agreement or provide the services of any individual or Corporation other than that stated above without the written consent of the Corporation. |
| 18. | Amendment |
| 18.1 | This Agreement may be amended only in writing by the parties hereto. |
| 19. | Interpretation |
| 19.1 | In this Agreement, a “business day” means a day other than Saturday, Sunday or a statutory holiday in the relevant jurisdiction. |
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| 19.2 | All headings in this Agreement are for convenience only and shall not be used in the interpretation of this Agreement. |
| 20. | Survival |
| 20.1 | Sections 7.2, 10 and 11 shall survive the termination of this Agreement and shall continue in full force and effect according to their terms. Counterparts and Delivery by Facsimile |
| 20.2 | This Agreement may be executed in any number of counterparts, each of which when executed and delivered is an original but all of which taken together will constitute one and the same instrument. Any party hereto may deliver an executed copy of this Agreement by facsimile |
IN WITNESS WHEREOF the parties hereto have duly executed this Agreement as of the date first above written.
| SILVER BULL RESOURCES, INC. | ) | |
| ) | c/s | |
| Per: | ) | |
| ) | ||
| /s/ Timothy Barry | ) | |
| Authorized Signatory | ) | |
| WESTCOTT MANAGEMENT LTD. | ) | |
| ) | c/s | |
| Per: | ) | |
| ) | ||
| /s/ Darren Klinck | ) | |
| Authorized Signatory | ) | |
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SCHEDULE “A”
SERVICES
Working closely with the CEO, the President shall have responsibility for providing strategic leadership and vision to the Corporation and for establishing, implementing and over-seeing the long-range goals, strategies, plans and policies of the Corporation. The President supports the CEO in creating value for the Corporation’s shareholders over the long term while ensuring that the Corporation’s critical short term performance goals are met and are met in a way that optimizes the Corporation’s ability to create value over the long term.
Responsibilities
The President will report to and work closely with the CEO on all facets of the Corporation’s business, including:
| · | Assisting and backing up the CEO in the discharge of the responsibilities of the CEO. |
| · | Setting company objectives and creating the strategic plan; establishing both annual and long-term operation and capital plans with the design to create shareholder value. |
| · | Direct the implementation of the Corporation’s strategic plan, with routine review as required through: |
| o | Active promotion of the Corporation’s strategic vision throughout the organization; |
| o | Implementing robust strategic and operational planning and reporting processes; |
| o | Continuously evaluating industry trends and events that may affect strategy; |
| o | Creating a corporate structure designed to best implement strategic action plan; and |
| o | Managing and integrating business units as appropriate. |
| · | Act as a senior spokesperson for the Corporation; creating and maintaining positive relationships between the Corporation and its employees, shareholders, regulatory officials and community stakeholders. |
| · | Build effective relationships with key executives and operational staff; and provide oversight of day-to-day activities of the business as required; ensuring operational and financial milestones are met, with the requisite controls and audits in place to safeguard performance, and with the ability to amend where required, with the objective of maximizing profitability and growth. |
| · | Ensure that resources and processes are implemented and maintained, and are effective in providing accurate and comprehensive evaluative information, including the development of operating protocols, sustainability practices and community engagement, while respecting and adhering to all local customs, laws, rules and regulations. |
| · | Act as a primary lead for all company marketing efforts; playing an active role in marketing for new shareholders, as well as communicating with existing investors, analysts and investment banks, raising the corporate profile and capital, if required. |
| · | Ensure that appropriate key performance metrics and assessments are established for the senior leadership team and employees, and monitor performance against those objectives. |
| · | Together with the Chief Financial Officer and other senior management, as appropriate, establish, maintain and ensure the implementation of the Corporation’s disclosure controls and procedures, internal controls over financial reporting, and processes for the certification of the public disclosure documents required under applicable legislation, regulatory requirements and policies. |
| · | Set the tone for the organization; leading by example and acting beyond reproach, so that all employees, consultants and contractors enact the same. Work to create a positive company culture where all employees are engaged and committed to creating a safe, efficient, thoughtful and profitable business. |
| · | Maintain a visible presence within the mining and minerals sector to ensure that the Corporation may
capitalize on future prospective opportunities. |
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SCHEDULE “B”
DEFINITIONS
The following terms shall have the following definitions:
| (a) | “Annual Fee” means equal to twelve (12) Monthly Fees |
| (b) | “Total Annual Compensation” means an Annual amount that is the combination of: |
| (i) | the Annual Fee as of the date the cessation of the Consultant’s engagement with the Corporation; and |
| (ii) | an amount equal to the annual average of Bonuses actually paid to the Consultant by the Corporation during the Consultant’s three (3) most recent years of engagement with the Corporation, or, if the Consultant has not been engaged for three (3) years with the Corporation since the Effective Date, an amount equal to the greater of the following amounts: |
| (A) | the annual average of Bonuses, if any, actually paid to the Consultant by the Corporation since the Effective Date; or |
(B) 50% of the Annual Fee in effect at the time of the Consultant’s cessation of engagement with the Corporation.
| (c) | “Board” means the Board of Directors of the Corporation; |
| (d) | “Change of Control” means the occurrence of one or more of the following events after the Effective Date of this Agreement: |
| (i) | a sale, lease or other disposition of all or substantially all of the assets of the Corporation, |
| (ii) | a consolidation or merger of the Corporation with or into any other corporation or other entity or person (or any other corporate reorganization) in which the shareholders of the Corporation immediately prior to such consolidation, merger or reorganization, own less than fifty percent (50%) of the outstanding voting power of the surviving entity (or its parent) following the consolidation, merger or reorganization; or |
| (iii) | a transaction or series or related transactions pursuant to which any person, entity or group within the meaning of Section 13(d) or 14(d) of the U.S. Securities Exchange Act of 1934 (“1934 Act”), or any comparable successor provisions (excluding any employee benefit plan, or related trust, sponsored or maintained by the Corporation or an affiliate) acquires beneficial ownership (within the meaning of Rule 13d-3 promulgated under the 1934 Act, or comparable successor rule) of securities of the Corporation representing at least fifty percent (50%) of the combined voting power entitled to vote in the election of directors; or |
| (iv) | a transaction or series of transactions pursuant to which (A) (i) any person, entity or group within the meaning of Section 13(d) or 14(d) of the 1934 Act, or any comparable successor provisions (excluding any employee benefit plan, or related trust, sponsored or maintained by the Corporation or an affiliate) acquires beneficial ownership (within the meaning of Rule 13d-3 promulgated under the 1934 Act, or comparable successor rule) of securities of the Corporation representing at least twenty percent (20%) of the combined voting power entitled to vote in the election of directors or securities of the Corporation that, upon conversion or exchange of such securities, would represent at least twenty percent (20%) of the combined voting power entitled to vote in the election of directors, or (ii) a consolidation or merger of the Corporation with or into any other corporation or other entity or person (or any other corporate reorganization) in which the shareholders of the Corporation immediately prior to such consolidation, merger or reorganization, own less than eighty percent (80%) of the outstanding voting power of the surviving entity (or its parent) following the consolidation, merger or reorganization and (B) in connection with or as a result of such transaction or series of transactions, either (i) one-half (or more) of the members of the Board of Directors of the Corporation resign or are replaced with nominees designated by such person, entity or group or (ii) the Chief Executive Officer of the Corporation resigns or is terminated as a result of such transaction or series of transactions. |
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| (e) | “Confidential Information” means all trade secrets, proprietary information and other data or information (and any tangible evidence, record or representation thereof), whether prepared, conceived or developed by an employee of the Corporation (including the Consultant) or received by the Corporation from an outside source which is maintained in confidence by the Corporation or any of its employees, contractors or customers including, without limitation: |
| (i) | any ideas, drawings, maps, improvements, know-how, research, geological records, drill logs, inventions, innovations, products, services, sales, scientific or other formulae, core samples, processes, methods, machines, procedures, tests, treatments, developments, technical data, designs, devices, patterns, concepts, computer programs or software, records, data, training or service manuals, plans for new or revised services or products or other plans, items or strategy methods on compilation of information, or works in process, or any inventions or parts thereof, and any and all revisions and improvements relating to any of the foregoing (in each case whether or not reduced to tangible form) that relate to the business or affairs of the Corporation or that result from its marketing, research and/or development activities; |
| (ii) | any information relating to the relationship of the Corporation with any personnel, suppliers, principals, investors, contacts or prospects of the Corporation and any information relating to the requirements, specifications, proposals, orders, contracts or transactions of or with any such persons; |
| (iii) | any marketing material, plan or survey, business plan, opportunity or strategy, development plan or specification or business proposal; |
| (iv) | financial information, including the Corporation’s costs, financing or debt arrangements, income, profits, salaries or wages; and |
| (v) | any information relating to the present or proposed business of the Corporation. |
| (f) | “Fundamental Breach” means any material breach of a fundamental term or condition of this Agreement and, without limiting the foregoing, includes any of the following acts or omissions: |
| (a) | the Consultant’s gross default or misconduct during the Consultant’s engagement in connection with or effecting the business of the Corporation; |
| (b) | the Consultant’s continued refusal or willful misconduct to carry out the duties of his employment after receiving written notice from the Corporation of the failure to do so and having had an opportunity to correct same within a reasonable period of time from the date of receipt of such notice; |
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| (c) | theft, fraud, dishonesty, misconduct, or misuse of alcohol or drugs of the Consultant involving the property, business or affairs of the Corporation or in the carrying out of the duties of his employment; or |
| (d) | any material breach of this Agreement including any breach Sections 6,7 or 8 of this Agreement; |
| (g) | “Good Reason” means any of the following conduct by the Corporation: |
| (i) | a unilateral reduction to the Annual Fee; |
| (ii) | a unilateral reduction to the aggregate value of the Consultant’s remuneration and benefits other than Annual Fee; |
| (iii) | a unilateral material adverse change to the Consultant’s position, title, authority or responsibilities; |
| (iv) | a unilateral requirement that the Consultant relocate outside of the Metro Vancouver region of British Columbia (excluding occasional business travel); or |
| (v) | any reason which would be considered to amount to constructive dismissal pursuant to the common law. |
| (h) | “Person” means an individual, partnership, association, Corporation, body corporate, trustee, executor, administrator, legal representative and any national, provincial, state or municipal government; |
14
Exhibit 10.3
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This AGREEMENT made as of the 17th day of February, 2022.
BETWEEN:
SILVER BULL RESOURCES, INC.
Suite 1610 – 777 Dunsmuir Street
Vancouver, BC, V7Y 1K4
(the “Company”)
AND:
ARRAS MINERALS CORP.
Suite 1610 – 777 Dunsmuir Street
Vancouver, BC, V7Y 1K4
(“Arras”)
AND:
CHRISTOPHER RICHARDS
918 West 13th Avenue
Vancouver, BC, V5Z 1P3
(the “Executive”)
WHEREAS:
A. The Company and the Executive entered into an Employment Agreement dated September 23, 2020 (the “Employment
Agreement”) pursuant to which the parties agreed to the terms and conditions of employment of the Executive.
B. The Company and the Executive wish to amend and restate the Employment Agreement.
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the forgoing recitals and of the mutual covenants, agreements and representations contained herein and other valuable consideration given by each party hereto to the other, the receipt and sufficiency of which are hereby acknowledged by each of the parties, the parties hereby agree as follows:
1. DEFINITIONS
1.1 Unless otherwise defined in the body of this Agreement, defined terms have the meanings ascribed to them in Schedule “A” of this Agreement.
2. EMPLOYMENT
2.1 Position. The Company and Arras agree to employ the Executive as the Chief Financial Officer, reporting to the Chief Executive Officer. The Executive shall perform, observe and conform to such duties and instructions as from time to time are lawfully assigned or communicated to the Executive on behalf of the Company and Arras and on behalf of such affiliated companies designated by the Company as requiring the services of the Executive and as are consistent with his position.
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2.2 Service. During the term the Executive shall:
(a) well and faithfully serve the Company and Arras and use his best efforts to promote the best interests of the Company;
(b) unless prevented by ill health or injury, devote the whole of his working time and attention to the business of the Company and Arras;
(c) comply in all material respects with any Company and Arras’ policies that may apply to the Executive from time to time; and
(d) not, without the prior written consent of the Company or Arras, which consent may be reasonably withheld in the sole discretion of the Company or Arras, engage in any other business, profession or occupation, or become an officer, director, employee, contractor for service, agent or representative of any other corporation, partnership, firm, person, organization or enterprise.
2.3 Term. The term of this Agreement shall be effective from January 1, 2022 (the “Effective Date”) and shall continue until this Agreement and the Executive’s employment are terminated in accordance with Section 4 of this Agreement.
3. COMPENSATION AND BENEFITS
3.1 Salary. The Company shall pay to the Executive $240,000 CDN (the “Total Base Salary”) per annum for all hours worked discharging the duties of his employment, payable in accordance with the Company’s regular payroll practices or on such other basis as mutually agreed between the Company and the Executive.
(a) The Total Base Salary consists of the Silver Bull Base Salary in the amount of $60,000 CDN per annum, and the Arras Base Salary in the amount of $180,000 CDN per annum. The Silver Bull Base Salary may be increased from time to time in the sole discretion of the Board of Directors of the Company and the Arras Base Salary may be increased from time to time in the sole discretion of the Board of Directors of Arras.
3.2 Annual Bonus. The Executive will be eligible to receive an annual bonus based upon attaining the performance criteria set by the Boards of Directors:
(a) For the Company, the terms and conditions of any bonus plan implemented by the Company are subject to modification from year to year by the Board of Directors of the Company in the Company’s sole discretion (the “Silver Bull Annual Bonus”). Whether the Executive has achieved the performance criteria in any year shall be determined by the Board of Directors of the Company, acting reasonably.
(b) For Arras, the Executive is eligible to participate in the Arras’ annual performance bonus plan with a target of up to fifty (50) percent of the Arras Annual Base Salary (the “Arras Annual Bonus”). The amount of the Arras Annual Bonus shall be determined by the Arras Board of Directors, in its sole discretion, based on certain financial and operating goals and individual performance objectives as defined by the Board of Directors in its sole discretion. The Executive acknowledges that there is no assurance that any Arras Annual Bonus will be paid in any given year, that the Arras Annual Bonus arrangements will remain unchanged or that the Arras Annual Bonus will be of the same amount in any future year as in any past year. Subject to the requirements of Section 4 of this Agreement, in the event the Executive gives or receives notice of termination of engagement, all entitlement to receive an Arras Annual Bonus shall cease (except for: Arras Annual Bonuses that have already been paid to the Executive by the Corporation; any Bonuses that have been awarded to the Executive by the Corporation in respect of an already completed financial year of the Corporation but which have not yet been paid by the Corporation to the Executive; and Arras Annual Bonuses that have been earned by the Executive but not paid to the Executive by the Corporation however, in this latter instance, the Arras Annual Bonus shall be paid on a pro rata basis, up to but not beyond the termination date, based on the financial and operating goals and individual performance objectives that had been set by the Board of Directors).
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3.3 Stock Options. The Executive will be eligible to participate in the Company and Arras’s Stock Option Plan and Equity Incentive Plan, respectively. Any grants under these plans will be at the sole discretion of the Board of Directors of the Company and Arras.
3.4 Group Benefits. The Executive will be eligible to participate in the Company’s employee benefit plans, provided that such participation will be subject to all terms and conditions of such plans (including, without limitation, all waiting periods, eligibility requirements, contributions, exclusions or other similar conditions and limitations). The introduction and administration of the employee benefit plans is within the Company’s sole discretion, and the Executive agrees that the introduction, deletion or amendment of any of the benefits shall not constitute a breach of this Agreement.
3.5 Vacation. The Executive shall be entitled to take four (4) weeks of paid vacation per year. The timing of vacation will be subject to the Company and Arras’ business needs at the time.
3.6 Expenses. The Executive shall be reimbursed by the Company and Arras for all reasonable expenses incurred in connection with the Executive’s employment within a reasonable time after receipt of the appropriate invoice or other documentation related to such expenses.
3.7 Other Perquisites. The Company and Arras agree to pay all reasonable costs associated with annual professional development fees and membership dues incurred by the Executive related to the Executive’s employment and to provide the Executive with reasonable time off of work to attend certified accountant professional development courses.
3.8 Statutory Deductions. The Company shall have the right to deduct and withhold from the Executive’s compensation any amounts required to be deducted and remitted under the applicable provincial laws or federal laws of Canada.
4. TERMINATION OF AGREEMENT AND EMPLOYMENT
4.1 Termination by Executive. The Executive may terminate his employment with the Company and/or Arras by giving not less than ninety (90) days written notice of resignation to the Company and/or Arras. At the time the Executive provides the Company and/or Arras with notice of resignation, or at any time thereafter, the Company and/or Arras shall have the right to elect to terminate the Executive’s employment at any time prior to the effective date of the Executive’s resignation, and upon such election, shall provide to the Executive a lump sum payment equal to the Silver Bull Base Salary and/or Arras Base Salary then in effect for the number of days that remain outstanding to the effective date of the Executive’s resignation.
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4.2 Termination by Company Without Cause. The Executive may at any time terminate his agreement with the Company for “Good Reason”, and the Company may terminate this Agreement without Cause at any time by providing the Executive with written notice of termination and a lump sum payment equal to:
(a) twelve (12) months of Silver Bull Base Salary and a pro-rata payment of the Silver Bull Annual Bonus.
(b) If the Company terminates this Agreement without Cause within three (3) months of a Change of Control of the Company, the Company must pay the Executive twenty-four (24) months of Silver Bull Base Salary plus a lump sum payment equal to two (2) Silver Bull Annual Bonuses, based upon the average of the past two previous year’s bonuses paid to the Executive.
4.3 Termination by Arras Without Cause. The Executive may at any time terminate his agreement with the Company for “Good Reason”, and Arras may terminate this Agreement without Cause at any time by providing the Executive with written notice of termination and a lump sum payment equal to:
(a) twelve (12) months of Arras Base Salary and a pro-rata payment of the Arras Annual Bonus.
(b) If Arras terminates this Agreement without Cause within three (3) months of a Change of Control of the Company, Arras must pay the Executive twenty-four (24) months of Arras Base Salary plus a lump sum payment equal to two (2) Arras Annual Bonuses, based upon the average of the two previous years’ bonuses paid to the Executive.
4.4 Termination By Executive Following a Change of Control. With Good Reason, the Executive may elect, within six (6) months of a Change of Control of the Company and/or Arras to terminate his employment and this Agreement upon providing written notice of termination to the Company and/or Arras. Upon receipt of such notice of termination in accordance with this, the Company and/or Arras must pay the Executive twenty-four (24) months of Base Salary plus a lump sum payment equal to two (2) Annual Bonuses, based upon the average of the two previous years’ bonuses paid to the Executive.
4.5 Termination by the Company and/or Arras for Just Cause. Notwithstanding any other provision of this Agreement, the Company and/or Arras may, on written notice to the Executive, immediately terminate this Agreement and the Executive’s employment with the Company and/or Arras at any time for Cause, without notice or pay in lieu of notice or any other form of compensation, severance pay or damages.
4.6 Directorship and Offices. Upon the termination of his employment with the Company or Arras, the Executive shall immediately resign any directorship or office held in the Company or Arras, or any respective parent, subsidiary or affiliated companies of the Company or Arras, and, except as provided in this Agreement, the Executive shall not be entitled to receive any written notice of termination or payment in lieu of notice, or to receive any severance pay, damages or compensation for loss of office or otherwise, by reason of the resignation or resignations referred to in this Sections 4.2, 4.3 or 4.4.
4.7 Annual Bonus Upon Termination. The Executive’s participation in any and all annual bonus plans shall cease immediately on the date the Executive receives or gives notice of termination of this Agreement and the Executive shall only be entitled to receive any Annual Bonus prorated to the date the Executive receives or gives notice of termination.
4.8 Stock Options on Termination. The vesting and exercise of any stock options granted to the Executive in the event the Executive’s employment with the Company and Arras, or this Agreement is terminated, for any reason, shall be governed by the terms of the Stock Option Plan and any applicable stock option agreement in effect between the Company, Arras and the Executive at the time of termination.
4.9 No Additional Payments. The Executive acknowledges and agrees that unless otherwise expressly agreed in writing between the Executive, the Company and/or Arras, the Executive shall not be entitled, by reason of the Executive’s relationship with the Company and Arras or by reason of any termination of his employment by the Company and/or Arras, for any reason, to any remuneration, compensation or other benefits other than those expressly provided for in this Agreement. The Executive further acknowledges and agrees that any amounts paid to the Executive pursuant to this Section 4 are inclusive of any amounts that may be payable under any statute of Canada in respect of compensation for length of service, notice of termination or severance pay.
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5. CONFIDENTIAL INFORMATION
5.1 The Executive acknowledges that, by reason of the Executive’s employment by the Company and Arras, the Executive will have access to Confidential Information of the Company and Arras that the Company and Arras have spent time, effort and money to develop and acquire. For the purposes of this Agreement any reference to the “Company” shall mean the Company, and such respective affiliates and subsidiaries as may exist from time to time. Furthermore, for the purposes of this Agreement any reference to “Arras” shall mean Arras, and such respective affiliates and subsidiaries as may exist from time to time.
5.2 The Executive acknowledges that the Confidential Information is a valuable and unique asset of the Company and Arras and that the Confidential Information is and will remain the exclusive property of the Company and Arras, respectively.
5.3 The Executive agrees to maintain securely and hold in strict confidence all Confidential Information received, acquired or developed by the Executive or disclosed to the Executive as a result of or in connection with the Executive’s employment. The Executive agrees that, both during his employment and after the termination of his employment with the Company and/or Arras, the Executive will not, directly or indirectly, divulge, communicate, use, copy or disclose or permit others to use, copy or disclose, any Confidential Information to any person, except as such disclosure or use is required to perform his duties hereunder or as may be consented to by prior written authorization of the Company and/or Arras, respectively.
5.4 The obligation of confidentiality imposed by this Agreement shall not apply to information that appears in issued patents or printed publications, that otherwise becomes generally known in the industry through no act of the Executive in breach of this Agreement, or that is required to be disclosed by court order or applicable law.
5.5 The Executive understands that the Company and Arras have from time to time in its possession information belonging to third parties or which is claimed by third parties to be confidential or proprietary and which the Company and Arras have agreed to keep confidential. The Executive agrees that all such information shall be Confidential Information for the purposes of this Agreement.
5.6 The Executive agrees that documents, copies, records and other property or materials made or received by the Executive that pertain to the business and affairs of the Company and Arras, including all Confidential Information which is in the Executive’s possession or under the Executive’s control are the property of the Company and Arras, and that the Executive will return same and any copies of same to the Company and/or Arras immediately upon termination of the Executive’s employment or at any time upon the request of the Company and/or Arras.
6. RESTRICTED ACTIVITIES
6.1 Restriction on Competition. The Executive covenants and agrees with the Company that the Executive will not, without the prior written consent of the Company, at any time during his employment or for a period of six (6) months following the termination of the Executive’s employment, for any reason, either individually or in partnership or in conjunction with any person, whether as principal, agent, shareholder, director, officer, employee, investor, or in any other manner whatsoever, directly or indirectly, advise, manage, carry on, be engaged in, own or lend money to, or permit the Executive’s name or any part thereof to be used or employed by any person managing, carrying on or engaged in a business anywhere in Kazakhstan or the province of Coahuila, Mexico or other jurisdiction in which Arras and the Company are carrying on the business of mineral exploration which is in direct competition with the business of the Company. The restrictions set forth in this Section 6.1 shall terminate and shall not apply to the Executive where the Executive’s employment is terminated by the Company and/or Arras following a Change of Control.
6.2 Restriction on Solicitation. The Executive shall not, at any time during his employment or for a period of six (6) months after the termination of the Executive’s employment, for any reason, without the prior written consent of the Company and/or Arras, for his account or jointly with another, either directly or indirectly, for or on behalf of himself or any individual, partnership, corporation or other legal entity, as principal, agent, employee or otherwise, solicit, influence, entice or induce, attempt to solicit, influence, entice or induce:
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(a) any person who is employed by the Company and Arras to leave such employment; or
(b) any person, firm or corporation whatsoever, who is or was at any time in the last twelve (12) months of the Executive’s employment a customer or supplier of the Company and Arras or any affiliate or subsidiary, to cease its relationship with the Company, Arras or any their affiliates or subsidiaries.
6.3 Corporate Opportunities. During the term of this Agreement, the Executive will offer to the Company any investment or other opportunity generally in the geographic area of the province of Coahuila, Mexico, and to Arras any investment or other opportunity generally in the country of Kazakhstan and any other geographic region in which the Company and Arras operate, of which he may become aware. If after 10 working days the Board of Directors of either the Company or Arras, as applicable, refuses the opportunity to participate in the investment or venture, the Executive is free to seek other alternatives only during his private time.
6.4 Restriction on Investments. The Executive may make passive investments in companies involved in industries in which the Company and Arras operate, provided any such investment does not exceed a 10% equity interest, unless Executive obtains consent to acquire an equity interest exceeding 10% by consent of the Chief Executive Officer and the Chairman of the Company and Arras.
7. ENFORCEMENT
7.1 The Executive acknowledges and agrees that the covenants and obligations under Sections 5 and 6 are reasonable, necessary and fundamental to the protection of the Company and Arras’ business interests, and the Executive acknowledges and agrees that any breach of these Sections by the Executive would result in irreparable harm to the Company and Arras, and loss and damage to the Company and Arras, for which the Company and/or Arras could not be adequately compensated by an award of monetary damages. Accordingly, the Executive agrees that, in the event the Executive violates any of the restrictions referred to in Sections 5 or 6, the Company and/or Arras shall suffer irreparable harm and shall be entitled to preliminary and permanent injunctive relief and any other remedies in law or in equity which the court deems fit.
8. GENERAL PROVISIONS
8.1 Cooperation and Assistance. The Executive agrees that he shall, both during the term of this Agreement and thereafter, fully co-operate with and assist the Company and Arras in the resolution of complaints, claims or disputes against the Company and/or Arras, including without limitation civil, criminal or regulatory proceedings.
8.2 Use of Likeness. The Executive hereby grants to the Company, Arras, their parent, subsidiary and affiliated companies, during the term of the Executive’s employment, and for a period of one (1) year after the termination of that employment for any reason, the right to use the Executive’s name, likeness and biography in connection with the advertising, sale and/or marketing of the Company and Arras’, or their parent or affiliated company’s, products or services.
8.3 Severability. If any provision of this Agreement is declared unenforceable or invalid for any reason whatsoever, such unenforceability or invalidity shall not affect the enforceability or validity of any remaining portion of this Agreement, which remaining portion shall remain in full force and effect with such unenforceable or invalid provisions shall be severed from the remainder of this Agreement.
8.4 Survival. The Company, Arras and the Executive expressly acknowledge and agree that the provisions of this Agreement, which by their express or implied terms extend beyond the termination of the Executive’s employment hereunder, or beyond the termination of this Agreement, shall continue in full force and effect notwithstanding the termination of the Executive’s employment or the termination of this Agreement for any reason.
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8.5 Entire Agreement. The provisions of this Agreement constitute the entire agreement between the parties and, except as specifically provided in any incentive plans that may be implemented from time to time after the Effective Date of this Agreement, supersede and cancel all previous communications, representations and agreements, whether oral or written, between the parties with respect to the Executive’s employment.
8.6 Amendment. This Agreement may not be amended or modified except by written instrument signed by the Company, Arras and the Executive.
8.7 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the province of British Columbia and the federal laws of Canada applicable therein, which shall be deemed to be the proper law hereof. The parties hereby attorn to and submit to the jurisdiction of the courts of British Columbia.
8.8 Enurement. This Agreement shall enure to the benefit of and be binding upon the parties hereto and their respective heirs, executors, administrators, successors, personal representatives and permitted assigns.
8.9 Assignment of Rights. The Company and Arras shall have the right to assign this Agreement to another party as a successor employer, provided that any such successor or assignee expressly assumes in writing the Company’s obligations under this Agreement. The Executive shall not assign his rights under this Agreement or delegate to others any of his functions and duties under this Agreement without the express written consent of the Company and Arras which may be withheld in its sole discretion.
8.10 Affiliated Corporations. The Executive acknowledges and agrees that all of the Executive’s covenants and obligations to the Company and Arras, as well as the rights of the Company and Arras under this Agreement, shall run in favour of and shall be enforceable by the parent, subsidiary and affiliated companies of the Company and Arras. The Executive acknowledges that notwithstanding references in this Agreement to affiliated companies of the Company, this Agreement is between the Executive, the Company and Arras. The Executive shall have no right to enforce this Agreement against any party other than the Company and Arras unless this Agreement is assigned to any entity in accordance with Section 8.9 of this Agreement.
8.11 Legal Advice. The Executive acknowledges this Agreement has been prepared by the Company and that the Executive has had sufficient time to review these documents thoroughly, including enough time to obtain independent legal advice concerning the interpretation and effect of these documents prior to their execution. By signing these documents, the Executive represents and warrants that he has read and understood these documents and that he executes them of his own free will and act.
IN WITNESS WHEREOF the parties hereto have duly executed this agreement as of the day and year first above written.
| SILVER BULL RESOURCES, INC. | |
| Per: | /s/ Timothy Barry |
| Authorized Signatory |
| ARRAS MINERALS CORP. | |
| Per: | /s/ Timothy Barry |
| Authorized Signatory |
| Per: | /s/ Christopher Richards |
| CHRSITOPHER RICHARDS |
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SCHEDULE “A”
DEFINITIONS
The following terms shall have the following definitions:
| (a) | “Board” means the Board of Directors of the Company; |
| (b) | “Cause” has the meaning commonly ascribed to the phrase “cause” or “just cause for termination” at common law and, without limiting the foregoing, includes any of the following acts or omissions: |
(a) the Executive’s gross default or misconduct during the Executive’s employment in connection with or effecting the business of the Company and/or Arras;
(b) the Executive’s continued refusal or willful misconduct to carry out the duties of his employment after receiving written notice from the Company and/or Arras of the failure to do so and having had an opportunity to correct same within a reasonable period of time from the date of receipt of such notice;
(c) theft, fraud, dishonesty or misconduct of the Executive involving the property, business or affairs of the Company and/or Arras, or in the carrying out of the duties of his employment; or
(d) any material breach of this Agreement including any breach Sections 5, 6 or 7 of this Agreement;
| (c) | “Change of Control” means the occurrence of one or more of the following events after the Effective Date of this Agreement: |
| (i) | a sale, lease or other disposition of all or substantially all of the assets of the Company or Arras, |
| (ii) | a consolidation or merger of the Company or Arras with or into any other corporation or other entity or person (or any other corporate reorganization) in which the shareholders of the Company or Arras immediately prior to such consolidation, merger or reorganization, own less than fifty percent (50%) of the outstanding voting power of the surviving entity (or its parent) following the consolidation, merger or reorganization; or |
| (iii) | a transaction or series or related transactions pursuant to which any person, entity or group within the meaning of Section 13(d) or 14(d) of the U.S. Securities Exchange Act of 1934 (“1934 Act”), or any comparable successor provisions (excluding any employee benefit plan, or related trust, sponsored or maintained by the Company, Arras, or an affiliate) acquires beneficial ownership (within the meaning of Rule 13d-3 promulgated under the 1934 Act, or comparable successor rule) of securities of the Company or Arras representing at least fifty percent (50%) of the combined voting power entitled to vote in the election of directors; or |
| (iv) | a transaction or series of transactions pursuant to which (A) (i) any person, entity or group within the meaning of Section 13(d) or 14(d) of the 1934 Act, or any comparable successor provisions (excluding any employee benefit plan, or related trust, sponsored or maintained by the Company, Arras or an affiliate) acquires beneficial ownership (within the meaning of Rule 13d-3 promulgated under the 1934 Act, or comparable successor rule) of securities of the Company or Arras representing at least twenty percent (20%) of the combined voting power entitled to vote in the election of directors or securities of the Company that, upon conversion or exchange of such securities, would represent at least twenty percent (20%) of the combined voting power entitled to vote in the election of directors, or (ii) a consolidation or merger of the Company with or into any other corporation or other entity or person (or any other corporate reorganization) in which the shareholders of the Company immediately prior to such consolidation, merger or reorganization, own less than eighty percent (80%) of the outstanding voting power of the surviving entity (or its parent) following the consolidation, merger or reorganization and (B) in connection with or as a result of such transaction or series of transactions, either (i) one-half (or more) of the members of the Board of Directors of the Company resign or are replaced with nominees designated by such person, entity or group or (ii) the chief executive officer of the Company resigns or is terminated as a result of such transaction or series of transactions. |
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| (d) | “Confidential Information” means all trade secrets, proprietary information and other data or information (and any tangible evidence, record or representation thereof), whether prepared, conceived or developed by an employee of the Company or Arras (including the Executive) or received by the Company or Arras from an outside source which is maintained in confidence by the Company, Arras or any of its employees, contractors or customers including, without limitation: |
| (i) | any ideas, drawings, maps, improvements, know-how, research, geological records, drill logs, inventions, innovations, products, services, sales, scientific or other formulae, core samples, processes, methods, machines, procedures, tests, treatments, developments, technical data, designs, devices, patterns, concepts, computer programs or software, records, data, training or service manuals, plans for new or revised services or products or other plans, items or strategy methods on compilation of information, or works in process, or any inventions or parts thereof, and any and all revisions and improvements relating to any of the foregoing (in each case whether or not reduced to tangible form) that relate to the business or affairs of the Company or Arras, or that result from its marketing, research and/or development activities; |
| (ii) | any information relating to the relationship of the Company and/or Arras with any personnel, suppliers, principals, investors, contacts or prospects of the Company and/or Arras and any information relating to the requirements, specifications, proposals, orders, contracts or transactions of or with any such persons; |
| (iii) | any marketing material, plan or survey, business plan, opportunity or strategy, development plan or specification or business proposal; |
| (iv) | financial information, including the Company and/or Arras’ costs, financing or debt arrangements, income, profits, salaries or wages; and |
| (v) | any information relating to the present or proposed business of the Company and Arras. |
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| (e) | “Good Reason” means any of the following conduct by the Company and/or Arras: |
| (i) | a unilateral reduction to the Silver Bull Annual Salary or Arras Annual Salary; |
| (ii) | a unilateral reduction to the aggregate value of the Executive’s remuneration and benefits, other than Annual Salary; |
| (iii) | a unilateral material adverse change to the Executive’s position, title, authority or responsibilities; |
| (iv) | a unilateral requirement that the Executive relocate outside of the Metro Vancouver region of British Columbia (excluding occasional business travel); or |
| (v) | any reason which would be considered to amount to constructive dismissal pursuant to the common law. |
| (f) | “Person” means an individual, partnership, association, company, body corporate, trustee, executor, administrator, legal representative and any national, provincial, state or municipal government; and |
| (g) | “Stock Option Plan” means the 2019 Stock Option and Stock Bonus Plan for Silver Bull Resources, Inc. as amended from time to time. |
| (h) | “Equity Incentive Plan” means the 2021 Equity Incentive Plan for Arras Minerals Corp. as amended from time to time. |
Exhibit 10.4
SILVER BULL RESOURCES, INC.
AMENDMENT TO MANAGEMENT RETENTION BONUS PLAN
This Amendment to the Silver Bull Resources, Inc. Management Retention Bonus Plan dated the 17th day of February, 2022 (this “Amendment”), is entered into by and among Silver Bull Resources, Inc. (“SB” or the “Company”) and Timothy Barry, Brian Edgar, Christopher Richards and David Xuan (collectively “Management”) and, together with the Company, the “Parties” and individually, a “Party”).
RECITALS
| A. | The Company and the Management entered into the Management Retention Bonus Plan agreement, dated April 15, 2021 (the “Retention Plan”) pursuant to which the Parties agreed to the terms and conditions of retention of Management. |
| B. | The Parties now wish to enter into this Amendment in order to modify certain terms of the Retention Plan. |
AGREEMENT
In consideration of the forgoing recitals and of the mutual covenants, agreements and representations contained herein and other valuable consideration given by each Party hereto to the other, the receipt and sufficiency of which are hereby acknowledged by each of the Parties, the Parties hereby agree to the following amendments:
| 1. | Definitions |
The following terms shall have the following definitions:
| a. | For the purposes of the Retention Plan, “market capitalization” shall be calculated using the prevailing share price on a Canadian stock exchange multiplied by the number of the Company’s shares outstanding. |
| b. | “Change of Control” means the occurrence of one or more of the following events after the Effective Date of this Retention Plan: |
| i. | a sale, lease or other disposition of all or substantially all of the assets of the Company, |
| ii. | a consolidation or merger of the Company with or into any other corporation or other entity or person (or any other corporate reorganization) in which the shareholders of the Company immediately prior to such consolidation, merger or reorganization, own less than fifty percent (50%) of the outstanding voting power of the surviving entity (or its parent) following the consolidation, merger or reorganization; or |
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| iii. | a transaction or series or related transactions pursuant to which any person, entity or group within the meaning of Section 13(d) or 14(d) of the U.S. Securities Exchange Act of 1934 (“1934 Act”), or any comparable successor provisions (excluding any employee benefit plan, or related trust, sponsored or maintained by the Corporation or an affiliate) acquires beneficial ownership (within the meaning of Rule 13d-3 promulgated under the 1934 Act, or comparable successor rule) of securities of the Corporation representing at least fifty percent (50%) of the combined voting power entitled to vote in the election of directors; or |
| iv. | a transaction or series of transactions pursuant to which (A) (i) any person, entity or group within the meaning of Section 13(d) or 14(d) of the 1934 Act, or any comparable successor provisions (excluding any employee benefit plan, or related trust, sponsored or maintained by the Corporation or an affiliate) acquires beneficial ownership (within the meaning of Rule 13d-3 promulgated under the 1934 Act, or comparable successor rule) of securities of the Corporation representing at least twenty percent (20%) of the combined voting power entitled to vote in the election of directors or securities of the Corporation that, upon conversion or exchange of such securities, would represent at least twenty percent (20%) of the combined voting power entitled to vote in the election of directors, or (ii) a consolidation or merger of the Corporation with or into any other corporation or other entity or person (or any other corporate reorganization) in which the shareholders of the Corporation immediately prior to such consolidation, merger or reorganization, own less than eighty percent (80%) of the outstanding voting power of the surviving entity (or its parent) following the consolidation, merger or reorganization and (B) in connection with or as a result of such transaction or series of transactions, either (i) one-half (or more) of the members of the Board of Directors of the Corporation resign or are replaced with nominees designated by such person, entity or group or (ii) the Chief Executive Officer of the Corporation resigns or is terminated as a result of such transaction or series of transactions. |
| 2. | Amendments |
| a. | Clause 5 of the Retention Plan to be replaced by the following wording: |
5. In the event that SB is the subject of a Change of Control, the 1% bonus shall be paid if the market capitalization of the Company is equal to or greater than $250,000,000 at any point prior to the closing o of the transaction and be equal to 1% of the bid price less any 1% bonus that may have been previously paid.
| b. | Clause 10 of the Retention Plan to be replaced by the following wording: |
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10. At the sole discretion of the Company’s Board of Directors, SB shall not be obligated to pay a bonus in cash under this agreement if it lacks funds at the time. In lieu of cash, the Company’s Board of Directors may choose to settle any bonus debt by issuing and delivering shares of SB for such debt valued at the 5-day trading VWAP for SB’s shares on the market calculated up to the day before the issue of the shares.
3. No Other Waiver or Amendment. Except as expressly modified herein, all terms and provisions of the Retention Plan shall remain unchanged and in full force and effect. This Amendment shall not be deemed to prejudice any rights or remedies which any Party may now have or may have in the future under or in connection with the Retention Plan or any of the instruments or agreements referred to therein, as the same may be amended, restated or otherwise modified.
4. Governing Law. This Amendment shall be governed by and construed in accordance with the laws of the province of British Columbia and the federal laws of Canada applicable therein, which shall be deemed to be the proper law hereof. The Parties hereby attorn to and submit to the jurisdiction of the courts of British Columbia.
5. Counterparts. This Amendment may be executed in one or more counterparts, each of which when executed shall be deemed to be an original, and such counterparts shall together constitute one and the same instrument.
6. Legal Advice. Management acknowledge this Amendment has been prepared by the Company and that Management have had sufficient time to review this Amendment thoroughly, including enough time to obtain independent legal advice concerning the interpretation and effect of this Amendment prior to their execution. By signing this Amendment, Management represent and warrant that they have read and understood this Amendment and that they execute them of their own free will and act.
[Signature Page Follows]
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IN WITNESS WHEREOF the Parties have executed this Amendment as of the date and year first above written.
SILVER BULL RESOURCES, INC.
Per: /s/ John McClintock
John McClintock
SIGNED, SEALED AND DELIVERED:
/s/ Timothy Barry
Timothy Barry
/s/ Brain Edgar
Brian Edgar
/s/ Christopher Richards
Christopher Richards
/s/ David Xuan
David Xuan