GENERAL RELEASE AND SETTLEMENT AGREEMENT
EXHIBIT
10.10
To
effect
an orderly transition in connection with the termination of their employment
relationship, and to transition such employment to a consulting agreement,
IDAHO
GENERAL MINES, INC. (“Employer”), and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (“Employee”) agree as
follows:
RECITALS
1. Employee
has been an employee of Employer, including, without limit, by virtue of
his
Employment Agreement, dated March 31, 2005 (the “Original Employment
Agreement”). The Employer and Employee entered into an Amended and Restated
Employment Agreement on January 30, 2007 (the “Amended Employment Agreement”),
which agreement was declared void by the Employer on June 26, 2007.
2. Employer
and Employee have certain disputes and disagreements regarding Employee’s
employment and the terms thereof, as well as various contractual disputes.
Nevertheless, the parties wish to acknowledge their long term working
relationship, the contributions provided by the Employee and the value provided
by the Employee to Employer, and wish to come to an amicable resolution of
their
differences.
3. The
parties further wish to change their relationship from an employment, to
a
consulting and advising relationship, in accordance with the terms of any
such
relationship. To that end, Employee is willing to resign from his employment
with Employer and resign from the Board of Directors of Employer. Employer
and
Employee wish to enter into this General Release and Settlement Agreement
(“Agreement”).
4. As
further consideration for the mutual promises and agreements herein, Employer
agrees to enter into the Consulting and Advisory Agreement (the “Consulting
Agreement”) with Employee, a copy of which is attached hereto.
as
Exhibit “A”.
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5. Nothing
in this Agreement is intended as or should be construed as an admission of
liability by Employer or Employee.
AGREEMENT
For
good
and valuable consideration rendered to resolve and settle finally, fully
and
completely all matters or disputes that now exist between them the Employer
and
Employee agree as follows:
1. RESIGNATION
DATE AND EFFECTIVE DATE. Subject to the terms and conditions of this Agreement,
the last day of active service by Employee as an employee of Employer or
any of
its affiliates and subsidiaries shall be the date this Agreement becomes
effective (“Resignation Date”). Employee shall claim no further right to
employment by Employer beyond the Resignation Date.
1.1 This
Agreement shall be effective upon expiration of the seven (7) day revocation
period (the “Effective Date”) as provided in Section 18, herein.
2. WAGES
AND
BENEFITS. Employer shall pay Employee all compensation, benefits and other
amounts owed Employee under the Original Employment Agreement for all time
worked through his last date of employment. Employee shall promptly submit
to
Employer, during the revocation period described herein, any business expenses
incurred prior to the Resignation Date for reimbursement. Employee will not
be
eligible for or considered for any bonus or other additional cash compensation
for his services under the Original Employment Agreement or otherwise. Coverage
under Employer’s group medical plan is effective through the Resignation Date.
Any funds Employee has in Employer’s 401(k) plan shall be handled in accordance
with the terms and conditions of that plan. All other compensation and benefits
shall cease on the Resignation Date. Other than the foregoing and the amounts
set forth in Section 3 of the this Agreement, Employer shall owe Employee
no
further compensation and/or benefits.
3. CONSIDERATION.
In consideration of the promises of Employee as set forth herein, the Employer
hereby does agree to pay to Employee, at the times set forth below,
consideration in the sum of Two Million Five Hundred Thousand Dollars
($2,500,000), less income and employment taxes, so long as (i) Employee has
not
revoked or materially breached this Agreement or (ii) Employer has not
terminated the Consulting Agreement pursuant to Section 13.1 thereof. Further,
if Employer has served a notice of deficiency upon Employee, pursuant to
said
Section 13.1, any payments which would otherwise be due under this Agreement
or
the Consulting Agreement shall be suspended until the deficiency has been
corrected, as provided in Section 13.1. Any payments previously paid by the
Employer shall not be affected by subsequent notices of deficiency. The
foregoing sum shall be paid as follows:
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a.
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One
Million Dollars ($1,000,000) on the Effective Date, anticipated
to be on
the eighth (8th)
day following execution of this
Agreement;
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b.
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Seven
Hundred Fifty Thousand Dollars ($750,000) payable six (6) months
from the
execution date and Seven Hundred Fifty Thousand Dollars ($750,000)
payable
twelve (12) months from the execution date.
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c.
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The
above sums shall be paid to the Estate of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ in
the event
of his death.
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4. CHANGE
OF
CONTROL. Automatically upon a Change of Control, Employer shall pay to Employee
any sums which are due but remain unpaid under Section 3 above. For purposes
of
this Agreement, Change of Control shall mean:
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a.
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The
acquisition by any individual, entity or group (within the meaning
of
Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934, as
amended (the "Exchange Act")) (a "Person") of beneficial ownership
(within
the meaning of Rule 13d-3 promulgated under the Exchange Act) of
50% or
more of either (A) the then-outstanding shares of common stock
of the
Employer (the “Company” for purposes of this Section 4)(the "Outstanding
Company Common Stock") or (B) the combined voting power of the
then-outstanding voting securities of the Company entitled to vote
generally in the election of directors (the "Outstanding Company
Voting
Securities"); provided, however, that, for purposes of this Section
4, the
following acquisitions shall not constitute a Change of Control:
(i) any
acquisition directly from the Company, (ii) any acquisition by
the
Company, or (iii) any acquisition by any employee benefit plan
(or related
trust) sponsored or maintained by the Company or any Affiliated
Company;
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b.
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consummation
of a reorganization, merger, statutory share exchange or consolidation
or
similar corporate transaction involving the Company or the acquisition
of
assets or stock of another entity by the Company (each, a "Business
Combination"), in each case unless, following such Business Combination,
(A) all or substantially all of the individuals and entities that
were the
beneficial owners of the Outstanding Company Common Stock and the
Outstanding Company Voting Securities immediately prior to such
Business
Combination beneficially own, directly or indirectly, more than
fifty
percent (50%) of the then-outstanding shares of common stock and
the
combined voting power of the then-outstanding voting securities
entitled
to vote generally in the election of directors, as the case may
be, of the
corporation resulting from such Business Combination (including,
without
limitation, a corporation that, as a result of such transaction,
owns the
Company or all or substantially all of the Company's assets either
directly or through one or more subsidiaries) in substantially
the same
proportions as their ownership immediately prior to such Business
Combination of the Outstanding Company Common Stock and the Outstanding
Company Voting Securities, as the case may be, and (B) no Person
(excluding any corporation resulting from such Business Combination
or any
employee benefit plan (or related trust) of the Company or such
corporation resulting from such Business Combination) beneficially
owns,
directly or indirectly, fifty percent (50%) or more of, respectively,
the
then-outstanding shares of common stock of the corporation resulting
from
such Business Combination or the combined voting power of the
then-outstanding voting securities of such corporation, except
to the
extent that such ownership existed prior to the Business Combination;
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c.
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a
sale or disposition of all or substantially all of the operating
assets of
the Company to an unrelated party;
or
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d.
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approval
by the shareholders of the Company of a complete liquidation or
dissolution of the Company.
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It
is
specifically agreed, however, the Company’s contemplated Delaware
reincorporation and merger to facilitate said reincorporation shall not
constitute a Change of Control.
5. RESIGNATION
FROM BOARD OF DIRECTORS. Effective upon the Resignation Date, Employee hereby
resigns his position as a member of the Board of Directors of Employer and
any
affiliate or subsidiary of Employer and shall claim no further rights or
benefits as a Director and/or Chairman of any such Board of Directors. Employee
shall sign a confirmation of resignation in the form attached hereto as Exhibit
“B”.
6. CONSULTING
AND ADVISORY SERVICE. As further consideration for Employee’s promises and
release herein, in recognition of Employee’s skills and history with Employer,
Employer and Employee agree to enter into the Consulting and Advisory Agreement
as of the Effective Date.
7. RELEASE
OF CLAIMS BY EMPLOYEE. In exchange for promises contained in this Agreement
and
to the extent permitted by law, Employee on behalf of himself and on behalf
of
his marital community hereby waives, releases and forever discharges, and
agrees
that he will not in any manner institute, prosecute or pursue any and all
complaints, claims, charges, liabilities, claims for relief, demands, suits,
actions or causes of action, whether in law or in equity, which he asserts
or
could assert, at common law or under any statute, rule, regulation, order
or
law, whether federal, state or local, or on any grounds whatsoever against
the
Employer and/or any of its current or former owners, officials, directors,
officers, shareholders, affiliates, agents, employee benefit plans,
representatives, servants, employees, attorneys, subsidiaries, parents,
divisions, branches, units, successors, predecessors and assigns (collectively
referred to herein as “Release Parties”) with respect to any event, matter,
claim, damage or injury arising out of his employment relationship with the
Employer, and/or termination of such employment relationship, including,
without
limitation, claims sounding in tort, violation of public policy, breach of
contract or claims arising from the Federal Age Discrimination and Employment
Act, Americans with Disabilities Act, or Title VII of the Civil Rights Act
of
1964, as amended, the Fair Labor Standards Rights Act of 1964, as amended,
the
Employee Retirement Income Security Act, as amended, or any similar state
statute and/or any other federal or state statute, and/or with respect to
any
other claim, matter or event arising prior to execution of this Agreement
by
Employee. It is the intent of Employee that the foregoing release encompasses
all claims of any kind and description, specifically including, but not limited
to, any claim relating to the action of the Board of Directors to void the
Amended Employment Agreement.
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8. OUTSTANDING
CLAIMS AND COVENANT NOT TO ▇▇▇. As further consideration and inducement for
this
Agreement, Employee represents that he has not filed or caused to be filed
any
lawsuit, complaint, or charge with respect to any claim this Release purports
to
waive or release, and promises and covenants never to file or prosecute a
lawsuit, complaint, or charge based on such claims (whether as a named plaintiff
or class member). However, the preceding sentence shall not preclude Employee
from filing or prosecuting a charge with any administrative agency with respect
to any such claims as long as Employee does not seek any damages, remedies,
or
other relief for Employee personally, which Employee promises not to do,
and any
right to which Employee hereby waives. This Section shall not apply to
claims challenging the validity of this Release in connection with federal
Age
Discrimination in Employment Act claims. If Employee is ever awarded or recovers
in any forum any amount as to a claim Employee has purported to waive in
this
Agreement (other than under the ADEA if Employee would be allowed lawfully
to
pursue such a claim), such amounts shall be payable to Employer and Employee
hereby assigns the right to any such amounts to Employer.
It
is the
intent of Employee that the foregoing representation and covenant encompasses
all claims of any kind and description, specifically including, but not limited
to, any claim seeking to invalidate the action of the Board of Directors
to void
the Amended Employment Agreement, or consequences thereof or to otherwise
seek
to enforce the provisions thereof. Employee agrees not to assert against
any
Released Person in any court any of the claims released under this Release
and
Employee shall indemnify the Released Persons from, defend, and hold the
Released Persons harmless against any claims arising out of or connected
with
the matters waived and released in this Release. This waiver and release
does
not release any claim based upon acts or omissions occurring or that could
be
alleged to have occurred after the execution of this Release, any claims
challenging the validity of this Release in connection with federal Age
Discrimination in Employment Act claims, any claims for payment due but not
yet
paid under this Agreement or any claim that may not be released by law under
this Release.
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9. NON-USE
AND NON-DISCLOSURE OF CONFIDENTIAL INFORMATION. Employee agrees that any
and all
information obtained by or disclosed to him during or by reason of his
employment by the Employer, including, without limitation, all data, reports,
recommendations, drawings, layouts, designs, tests, maps, sketches, models,
communications and other information, in whatever form, concerning the business,
properties, policies, procedures, operations, resources, customers, business
plans, strategies or intentions of the Employer (the “Information”), is
proprietary to the Employer, its clients and associates, as the case may
be, and
confidential, and all copies of the same in possession of Employee have been
delivered to the Employer prior to the Resignation Date. Notwithstanding
the
foregoing, Information shall not include any information that is or subsequently
becomes publicly available without Employee’s breach of any confidentiality
obligation owed to Employer. Employee further agrees to not use or disclose
to
any third party any Information except as permitted under the Consulting
Agreement in furtherance of Employee’s duties thereunder. Employee agrees that
the Employer shall not have an adequate remedy at law for a violation of
his
obligations in this Section 9 and consents to the entry of an injunction
preventing any threatened breach without the necessity of notice or posting
a
bond.
10. CONFIDENTIALITY.
The parties agree to keep the terms of this Agreement (including the fact
and
amount of payments under this Agreement) completely confidential, and they
will
not disclose any information concerning this Agreement or its terms to anyone
except, Employee may disclose information to Employee’s
spouse, legal counsel and/or financial advisors, who will be informed of
and be
bound by this confidentiality clause and this provision is not intended to
restrict Employee from making disclosures as may be required by law or legal
process. It is understood and agreed that Employer may make disclosures of
the
terms of this Agreement as may be required by federal or state law or applicable
SEC or stock exchange requirements, and to those with a business need to
know
and Employer shall be fully and solely responsible for the content of the
disclosure.
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11. COMPANY
PROPERTY. Employee represents and warrants that as of the Resignation Date,
Employee will have turned over to Employer all Employer-owned files, memoranda,
keys, cellular phones, pagers, credit cards, manuals, data, records and other
documents, including electronically recorded documents, photographs, data,
employee handbooks, and physical property that Employee received from Employer
or its employees or that Employee generated in the course of Employee’s
relationship with Employer.
12. NON-DISPARAGEMENT.
Employee will not disparage Employer, including any of Employer’s affiliates,
respective directors, officers or employees. Employer will not disparage
Employee. Neither party will be in breach of this provision by providing
information required by law or legal compulsion.
13. NO
ADMISSION OF LIABILITY. By entering into this Agreement, Employer and all
Released Parties do not admit any liability whatsoever to Employee or to
any
other person arising out of any claims heretofore asserted by Employee, and
Employer, for itself and all Released Parties, expressly denies any and all
such
liability.
14. SCOPE
OF
AGREEMENT. Employee hereby affirms and acknowledges that he has read the
foregoing Agreement, that he has had sufficient time and opportunity to review
or discuss it with counsel of his choice, and that he fully understands and
appreciates the meaning of each of its terms, and that it is a voluntary,
full
and final compromise, release and settlement of all claims, known or unknown,
with respect to his service on its Board of Directors, his employment with
Employer, and/or the termination of that employment relationship. The parties
to
this Agreement agree that this Agreement may be used as evidence in any
subsequent proceeding in which any of the parties alleges a breach of this
Agreement or seeks to enforce its terms, provisions or obligations.
15. ARBITRATION/COSTS. Any
dispute or controversy arising under or in connection with this Agreement
that
cannot be informally resolved shall be settled exclusively by arbitration
in
Spokane, Washington by a sole neutral arbitrator in accordance with the Rules
of
the American Arbitration Association relating to employment disputes then
in
effect. Judgment may be entered on the arbitrator’s award in any jurisdiction.
Notwithstanding the foregoing, nothing in this provision restricts in any
way
the Employer’s right to seek injunctive or other equitable relief in any court.
The prevailing party shall be entitled to an award of its reasonable costs,
including attorneys’ fees, except with regard to any claim challenging the
validity of this Release in connection with federal Age Discrimination in
Employment Act claims. Notwithstanding this provision, nothing in this Agreement
shall bar Employer from seeking injunctive or other relief to enforce Employer’s
rights pursuant to the surviving provisions of the Consulting
Agreement.
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16. INDEMNIFICATION.
Employer agrees that it shall indemnify and defend Employee against claims
by
any third party relating to or arising out of any action or inaction on the
part
of Employee in his capacity as an employee or director of Employer which
occurred before the date of this Agreement to the fullest extent permitted
by
the Employer’s Articles of Incorporation and Bylaws.
17. ENTIRE
AGREEMENT. This Agreement, including the exhibits, constitutes the complete
understanding between Employee and Employer and supercedes any and all prior
agreements, promises, representations, or inducements, no matter its or their
form, concerning its subject matter unless otherwise expressly set forth
herein.
No promises or agreements made subsequent to the execution of this Agreement
by
these parties shall be binding unless reduced to writing and signed by
authorized representatives of these parties.
18.
CONFIRMATION OF WAIVER AND RELEASE. By signing this Agreement, Employee affirms
that: he read this Agreement and found it to be written in a manner that
he
understands; he knows that this Agreement is waiving any potential claims
under
the Age Discrimination in Employment Act and other discrimination statutes;
he
understands that this Agreement does not waive rights or claims that may
arise
after the date this agreement is executed; he has been encouraged to consult
with an attorney before signing and returning this Agreement; he has been
given
at least 21 days to consider this Agreement and 7 days to revoke his acceptance;
Employer is providing valuable consideration for this release, which Employee
would not otherwise be entitled to in the absence of this Agreement; and
he is
freely, voluntarily, and without coercion, entering into this Agreement and
agreeing to be bound by its terms. Employee has the right to revoke this
Agreement within seven (7) days of its execution. To revoke this Agreement,
Employee must deliver a written and signed statement of revocation to ▇▇▇▇▇
▇.
▇▇▇▇▇▇, by no later than 5:00 p.m. on the seventh day after Employee signs
this
Agreement. Employee may hand-deliver the revocation to ▇▇. ▇▇▇▇▇▇ or may
email
the revocation to ▇▇. ▇▇▇▇▇▇. If Employee effectively revokes this Agreement,
all of the promises made by the Employer through or related to this Agreement
will not be effective.
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19. NOTICES.
Any notice, consent, approval, request, demand or other communication required
or permitted hereunder must be in writing to be effective and shall be deemed
delivered and received (i) if personally delivered or if delivered by telex
or
telecopy with electronic confirmation when actually received by the party
to
whom sent, or (ii) if delivered by mail (whether actually received or not),
at
the close of business on the fifth business day next following the day when
placed in the federal mail, postage prepaid, certified or registered mail,
return receipt requested, addressed as follows:
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If
to Company:
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇, CEO | ||
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Idaho
General Mines, Inc.
▇▇▇▇
▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
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with
a copy to:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ | ||
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Hull
& ▇▇▇▇▇▇▇▇▇▇▇ Chartered
▇.▇.
▇▇▇ ▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
(which
shall not constitute notice)
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If
to Consultant:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||
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▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇ ▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Fax:
______________________
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with
a copy to:
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||
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▇▇▇▇▇▇▇
▇▇▇▇▇▇, P.S.
▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
(which
shall not constitute notice)
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20. COUNTERPARTS;
FACSIMILE.
This
Agreement may be executed in counterparts, any one of which need not contain
the
signatures of more than one party, but all such counterparts taken together
will
constitute one and the same instrument. This Agreement and any counterpart
thereof may be executed by facsimile and when delivered shall be deemed to
be an
original.
21. INUREMENT.
The
provisions, covenants and conditions of this Agreement shall be binding upon
and
inure to the benefit of the heirs, representatives and successors (by merger
or
otherwise) of the parties.
22. OTHER.
Employee represents and warrants that Employee is the sole and exclusive
owner
of all respective claims, demands and causes of action, and that no other
party
has any right, title or interest whatsoever in any of the matters referred
to
herein, and there has been no assignment, transfer, conveyance or other
disposition by Employee of any matters referred to herein. Employee has made
no
claim of filing with any Agency or court. This Agreement shall be governed
by
the law of the State of Washington, without regard to its choice of law
principles.
DATED
this 1st day of October, 2007.
| Employee: | ||
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| /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
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For
and on behalf of
IDAHO
GENERAL MINES, INC.
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| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Chief Executive Officer
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11
CONSULTING
AND ADVISORY AGREEMENT
To
effect
an orderly transition in connection with the termination of their employment
relationship, and to transition such employment to a consulting agreement,
IDAHO
GENERAL MINES, INC. (the “Company”), and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (the “Consultant”)
agree as follows:
RECITALS
1. Consultant
has been an employee of the Company.
2. Consultant
has submitted his resignation and the Company has accepted that resignation,
effective ______________, 2007. In recognition of Consultant’s service to the
Company, his expertise in the mining industry, his knowledge of the assets
and
properties of the Company and his knowledge and expertise in constructing
and
operating major mines, ▇▇▇▇▇ and related facilities the Company and Consultant
desire to transition to a consulting and advisory relationship.
NOW
THEREFORE in consideration of the foregoing and the respective covenants
and
promises of the parties contained herein, the Company and Consultant enter
into
this Consulting and Advisory Agreement (the “Agreement”) and agree as
follows:
AGREEMENT
1. EFFECTIVE
DATE. This Agreement shall be effective on the date that it is executed by
the
parties herein.
2. TERM.
This Agreement shall have a term of thirty six (36) months form the Effective
Date, subject to the termination provisions set forth herein.
3. DESCRIPTION
OF SERVICES AND DUTIES. Consultant shall, to the best of his ability,
industriously and faithfully perform the responsibilities set forth herein
and
provide consulting/advisory services (“Services”) to the Company on an ongoing
basis for the term set forth above for the projects as assigned to the
Consultant by the Chief Executive Officer (“CEO”) of the Company. Consultant
shall provide written reports as directed by the CEO which are consistent
with
the Services being performed. The reports are to be provided on a
monthly/quarterly basis as directed by the CEO and as is necessary in connection
with the Services assigned to the Consultant.
3.1 In
performing the Services, Consultant shall, to the best of his ability,
industriously and faithfully perform the responsibilities and devote adequate
and sufficient business time, attention, skill and efforts to the tasks assigned
to him by the CEO and to do so on a priority basis to the Company. Consultant
shall be available to the Company to perform the Services required herein,
not
engage in other consulting services which would cause him to be unavailable
to
the Company and be unable to perform the Services required herein. It is
the
intent of the parties that the Company be Consultant’s primary consulting
obligation.
3.2 Consultant
agrees that he shall not engage in any outside consulting services on any
project anywhere in the world to any person, entity or organization involving,
directly or indirectly, the exploration, development, extraction or processing
of molybdenum. If Consultant contemplates providing outside consultant services
to any person, entity or organization which also is engaged, as a part of
its
business, in the exploration, development, extraction or processing of
molybdenum, prior to doing so he shall certify and provide assurances to
the
Company that he will not provide any advice, review, consultation or any
services whatsoever to said business’ molybdenum project(s). In other words,
Consultant shall not provide any consulting services on any molybdenum projects
other than for the Company. Consultant agrees that molybdenum is a mineral
of
primary concern to the Company and that a breach of this provision would
cause
substantial harm and damages to the Company for which there would be no adequate
remedy. If the Consultant violates this provision it is agreed that there
would
be no adequate remedy at law and the Company may obtain injunctive relief.
If
this provision is violated by Consultant the Company may terminate this
Agreement, for cause, in addition to seeking injunctive relief and other
appropriate relief.
3.3 Without
limitation, Consultant’s primary duties and Services under this Agreement shall
be to assist the Company in all areas involving the development, construction
and operation of the Mount Hope Project, the Liberty Project and other Company
mining facilities, assets and projects as may be directed by the CEO which
may
include studies, reports and/or the evaluation of the Company’s non-core assets
for disposition. Consultant’s Services shall also include serving as a technical
consultant to the Company in any area of professional expertise and experience
he holds and shall, as directed by the CEO, perform the Services as assigned
to
him.
Exhibit
"A"
2
3.4 Upon
request by the CEO, the Consultant shall attend the Company’s Board of Directors
Meetings and make reports to the Board.
3.5 Consultant
acknowledges that he has no speaking or binding authority on behalf of the
Company, and shall not enter into any obligations on its behalf without the
express authority of the Company. Consultant shall not hold himself out as
having authority that is inconsistent with this provision.
3.6.
Consultant shall not disparage the Company, its officers, directors, employees
and/or agents.
4. COMPENSATION
FOR SERVICES. For the Services to be performed by the Consultant the Company
shall pay the Consultant the following sums:
4.1 Annual
payment of Two Hundred Fifty Thousand Dollars ($250,000), payable quarterly
($62,500) (in arrears), for each twelve (12) months of the term of this
Agreement.
4.2 Consultant
shall be paid a bonus of Two Hundred Fifty Thousand Dollars ($250,000) payable
within forty five (45) days (the “Payment Date”) of the start of construction of
the Mount Hope Project (the “Trigger Date”). If the Trigger Date does not occur
during the term of this Agreement, Consultant shall nevertheless be paid
the
bonus on or prior to the Payment Date if the delay in the start of construction
is not related to or arising out of, in the good faith determination by the
Company, any acts of Consultant or the failure of Consultant to provide the
Services set forth herein. Notwithstanding the foregoing, the bonus shall
not be
paid if the Trigger Date does not occur on or prior to June 30,
2012.
Exhibit
"A"
3
4.3 This
is a
Professional Service agreement, in which Consultant agrees to provide Company
with the consulting and advisory services contemplated herein. Consultant
is an
independent contractor providing services to Company. This Agreement is not
an
employment agreement between Company and Consultant. Company will not withhold,
report or pay so-called payroll taxes from the compensation payable to
Consultant, including, without limit, Federal and State income taxes (if
any),
Federal social security tax and (if any) State unemployment insurance tax.
Consultant shall be responsible for the payment of all applicable federal,
state
and local taxes and withholdings as required by applicable law, and for
compliance with all other obligations, such as with regard to industrial
insurance. Consultant agrees to and shall indemnify, defend and hold Company
harmless from any claims by any government entity regarding the payment of
such
taxes or withholdings.
5. BUSINESS
EXPENSES/REIMBURSEMENT. The Company shall reimburse Consultant for his
reasonable and necessary business expenses incurred in connection with the
performance by Consultant of his Services hereunder, subject to compliance
with
such policies regarding expenses and expense reimbursements as may be provided
from time to time by the Company.
6.
NO OTHER
BENEFITS. Consultant shall not be entitled to any benefits or other compensation
that are otherwise available to employees of the Company and no payments
due
herein whether accelerated by Change Of Control or otherwise shall be increased
for an excised tax gross-up payment in any manner.
7. ASSIGNMENT.
Except as provided herein, this Agreement may not be assigned by either party
without the express written consent of the other party, in such party’s sole and
absolute discretion. Notwithstanding the foregoing, the Company may assign
its
rights and obligations under this Agreement (by operation of law or otherwise)
without the consent of Consultant in connection with the sale of assets or
merger of the Company. Notwithstanding the foregoing, Consultant
may assign this Agreement to a different entity which he establishes as a
consulting business, provided that such assignment is subject to the express
written consent of Company, and provided further that Consultant, and no
one
else, must personally perform the services contemplated herein. Any purported
assignment by any party in violation hereof shall be null and void in the
making
thereof. This Agreement shall be binding upon and moved to the benefit of
the
parties hereto their respective successors, permitted assigns, executors,
administrators and heirs at law
Exhibit
"A"
4
8. CHANGE
OF
CONTROL. Upon Change Of Control Consultant shall be paid any sums which are
earned through the date of Change Of Control but not yet paid plus a sum
equal
to the number of months left on the term. For purposes of this Agreement
Change
Of Control shall mean:
8.1 The
acquisition by any individual, entity or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) (a "Person") of beneficial ownership (within the meaning
of
Rule 13d-3 promulgated under the Exchange Act) of 50% or more of either (A)
the
then-outstanding shares of common stock of the Company (the "Outstanding
Company
Common Stock") or (B) the combined voting power of the then-outstanding voting
securities of the Company entitled to vote generally in the election of
directors (the "Outstanding Company Voting Securities"); provided, however,
that, for purposes of this Section 8, the following acquisitions shall not
constitute a Change of Control: (i) any acquisition directly from the Company,
(ii) any acquisition by the Company, or (iii) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by the Company or
any
Affiliated Company;
8.2 consummation
of a reorganization, merger, statutory share exchange or consolidation or
similar corporate transaction involving the Company or the acquisition of
assets
or stock of another entity by the Company (each, a "Business Combination"),
in
each case unless, following such Business Combination, (A) all or substantially
all of the individuals and entities that were the beneficial owners of the
Outstanding Company Common Stock and the Outstanding Company Voting Securities
immediately prior to such Business Combination beneficially own, directly
or
indirectly, more than fifty percent (50%) of the then-outstanding shares
of
common stock and the combined voting power of the then-outstanding voting
securities entitled to vote generally in the election of directors, as the
case
may be, of the corporation resulting from such Business Combination (including,
without limitation, a corporation that, as a result of such transaction,
owns
the Company or all or substantially all of the Company's assets either directly
or through one or more subsidiaries) in substantially the same proportions
as
their ownership immediately prior to such Business Combination of the
Outstanding Company Common Stock and the Outstanding Company Voting Securities,
as the case may be, and (B) no Person (excluding any corporation resulting
from
such Business Combination or any employee benefit plan (or related trust)
of the
Company or such corporation resulting from such Business Combination)
beneficially owns, directly or indirectly, fifty percent (50%) or more of,
respectively, the then-outstanding shares of common stock of the corporation
resulting from such Business Combination or the combined voting power of
the
then-outstanding voting securities of such corporation, except to the extent
that such ownership existed prior to the Business Combination;
Exhibit
"A"
5
8.3 a
sale or
disposition of all or substantially all of the operating assets of the Company
to an unrelated party; or
8.4 approval
by the shareholders of the Company of a complete liquidation or dissolution
of
the Company.
It
is
specifically agreed, however, the Company’s contemplated Delaware
reincorporation and merger to facilitate said reincorporation shall not
constitute a Change of Control.
9. TERM
OF
AGREEMENT AND TERMINATION BY CONSULTANT. The term of this Agreement shall
be for
thirty six (36) months and shall commence as of the Effective Date and shall
terminate automatically thirty six (36) months thereafter. Despite the term
of
this Agreement (i) Consultant shall have the right to terminate this Agreement
upon sixty (60) days prior written notice to the Company for any reason provided
the Company may waive the notice period and (ii) the Company shall have the
right to terminate this Agreement in accordance with the provisions of Section
13 hereof. In any such event, the Company shall pay Consultant the amounts
due
through the date of termination but no other sums shall be due, including
the
bonus if not otherwise payable. Provided, however, the provisions set forth
in
Sections 10, 11 and 12 shall survive any such termination.
Exhibit
"A"
6
10. DISCLOSURE
OF INFORMATION.
10.1 Consultant
acknowledges that he will receive access to the Company’s Confidential
Information. For purposes of this Agreement, "Confidential Information" means
nonpublic information that Company discloses to Consultant and designates
as
being confidential or proprietary or which under the circumstances surrounding
disclosure, ought to be treated as confidential. "Confidential Information"
includes, without limitation, information relating to Company’s current and/or
proposed business plans, financial statements, budgets, customer or potential
customer lists, product development plans, inventions, research, testing
results, released or unreleased products or services, marketing or promotion
of
any product or service, employees, customers, contracts, policies and practices,
and information received from others that Company is obligated to treat as
confidential. Consultant and Company agree that any proprietary or confidential
information which has been disclosed to Consultant prior to the date of this
Agreement in connection with his prior employment by the Company shall also
be
subject to terms and conditions hereof. Notwithstanding the foregoing,
Confidential Information shall not include any information that is or
subsequently becomes publicly available without Consultant's breach of any
confidentiality obligation owed to Company. Consultant agrees that he will
not
at anytime during the term of this Agreement or following termination of
the
Agreement for any reason, disclose, use or make otherwise available to any
third
party, any Confidential Information, except for disclosure necessary in the
course of Consultant’s duties under this Agreement or as otherwise required by
law. In the latter event, Consultant shall disclose to the Company the event
and
authority requiring disclosure “required by law” at the first opportunity upon
learning of the disclosure request and provide the Company with a reasonable
opportunity to oppose or narrow such disclosure requirement or request or
otherwise seek appropriate confidentiality protections relating to such
information.
10.2 Upon
termination of this Agreement, Consultant shall deliver to a designated Company
representative all records, documents, hardware, software and all other Company
property in whatever form and all copies thereof in Consultant’s possession.
Consultant acknowledges that all such materials are the sole property of
the
Company and that Consultant will certify in writing to the Company at the
time
of termination that Consultant has complied with this obligation.
Exhibit
"A"
7
11. DISCLOSURE
AND ASSIGNMENT OF INVENTIONS.
11.1 Consultant
agrees to promptly disclose to the Company inventions, ideas, processes,
writings, designs, development and improvements, whether or not protectable
under the applicable patent, trademark or copyright statues, which Consultant
makes, conceives, reduces to practice or learns as direct or indirect result
of
his performance of the Services and duties for which he was engaged by the
Company in connection with this Agreement, either alone or jointly with others
relating to any business which the Company, during the period of this Agreement
is or may be concerned (“Inventions”). Consultant agrees that any such
Inventions are “works for hire”. Such disclosure shall be made by Consultant to
the Company in a written report, setting forth in detail the structures,
procedures and methodology employed and the results achieved.
11.2 Consistent
with and to the extent permitted by applicable law, Consultant hereby assigns
and agrees to assign to the Company all rights in and to the Inventions and
proprietary rights therein, as provided in Section 11.1, based thereon or
related thereto, including, but not limited to, applications for United States
and foreign patents and resulting patents.
11.3 Consultant
further agrees, without charge to the Company but at its expense, to assist
the
Company in every proper way and execute, acknowledge and deliver to the Company,
during and after termination of this Agreement, all such documents necessary
and
perform such other legal acts as may be necessary, in the opinion of the
Company, to obtain or maintain United States or foreign patents or other
proprietary protection, for any and all Inventions made during his performance
of the duties and Services for the Company in any and all countries, and
to vest
title therein to the Company.
11.4 Consultant
acknowledges notice from the Company that this foregoing obligation to assign
rights in and to any Inventions does not apply to an Invention for which
no
equipment, supplies, facility or Confidential Information of Company was
used
and which was developed entirely on Consultant's own time and (1) which does
not
relate (A) directly to the business of the Company, or (B) to the Company's
actual or demonstrably anticipated research or development; or (2) which
does
not result from any work performed by Consultant for the Company.
Exhibit
"A"
8
11.5 Consultant
further agrees that prior to termination of the Agreement with the Company
for
any reason, Consultant shall disclose to the Company, in a written report,
all
Inventions, the rights to which Consultant has agreed to assign to the Company
under Sections 11.1 and 11.2 above, and which Consultant has not previously
disclosed.
12. RESTRICTIVE
COVENANTS.
12.1 Non-Solicitation.
(a)
Consultant specifically acknowledges that the Confidential Information described
in Section 10.1 includes confidential data pertaining to current and prospective
customers of the Company, that such data is a valuable and unique asset of
the
Company's business and that the success or failure of the Company's specialized
business is dependent in large part upon the Company's ability to establish
and
maintain close and continuing personal contacts and working relationships
with
such customers and to develop proposals which are specifically designed to
meet
the requirements of such customers. Therefore, during term of this Agreement
and
for the twelve (12) months following termination of this Agreement for any
reason, except on behalf of the Company or with the Company's prior written
consent, Consultant is prohibited from soliciting, either directly or
indirectly, on his own behalf or on behalf of any other person or entity,
all
such customers with whom Consultant had contact during the twenty-four (24)
months preceding termination of this Agreement.
(b) Consultant
specifically acknowledges that the Confidential Information described in
Section
10.1 also includes confidential data pertaining to current and prospective
employees and agents of the Company, and Consultant further agrees that during
the term of this Agreement and for the twelve (12) months following termination
of this Agreement for any reason, Consultant will not directly or indirectly
solicit, on his own behalf or on behalf of any other person or entity, the
services of any person who is an employee or agent of the Company or solicit
any
of the Company's employees or agents to terminate their employment or agency
with the Company.
Exhibit
"A"
9
(c) Consultant
specifically acknowledges that the Confidential Information described in
Section
10.1 also includes confidential data pertaining to current and prospective
vendors and suppliers of the Company, Consultant agrees that during the term
of
this Agreement and for the twelve (12) months following termination of this
Agreement for any reason, Consultant will not directly or indirectly solicit,
on
his own behalf or on behalf of any other person or entity, any Company vendor
or
supplier for the purpose of either providing products or services to competitors
of the Company, as described in Section 12.2(b), or terminating such
vendor's or supplier's relationship or agency with the Company.
(d) Consultant
further agrees that, during term of this Agreement and for the twelve (12)
months following termination of this Agreement for any reason, Consultant
will
do nothing to interfere with any of the Company's business
relationships.
12.2 Non-Competition.
(a) Consultant
represents to the Company that Consultant is not a party to any agreement
with a
prior employer, client or otherwise which would prohibit Consultant from
performing this Agreement. Consultant further represents that he has provided
to
the Company copies of any and all agreements (e.g.,
non-competition, non-solicitation, or non-disclosure agreements) that might
limit Consultant's ability, in any way, to perform the Services set forth
herein, and Consultant agrees to act at all times on behalf of the Company
in a
manner consistent with any such agreements. Consultant acknowledges and
understands that the Company will have no obligation to provide legal
representation to Consultant in the event a prior employer, client or other
third party brings or threatens to bring an action against Consultant for
violating any such agreements; and that this Agreement may be terminated
in the
event the Company determines that Consultant may have violated any such
agreements. Despite anything to the contrary herein, termination based upon
the
Company’s determination that Consultant has violated this Section 12.2 shall be
considered termination for Cause.
Exhibit
"A"
10
(b) Consultant
covenants and agrees that during the period commencing on the Effective Date
and
ending thirty-six (36) months from the Effective Date (the “Restriction
Period”), he will not, in the United States or Canada or in any other
jurisdiction or country, engage in or carry on, directly or indirectly, as
an
owner, employee, agent, associate, consultant or in any other capacity, a
business competitive with that conducted by the Company. A "business competitive
with that conducted by the Company" shall mean any business or activity involved
in the discovery or mining of (1) molybdenum or, (2) any other ore that produces
molybdenum as a by product. For purposes of this subparagraph (b)(2), a business
is not competitive with the Company if the annual gross revenue derived from
the
sale of molybdenum as a by product during all times during the Restriction
Period comprises less than the lesser of (i) 10% of the annual gross revenue
of
said business or (ii) $50 million (a “Minimal Producer”). If Consultant
contemplates entering into any employment or business arrangement with a
Minimal
Producer he shall, prior to the commencement of such employment or affiliation,
certify and provide continued assurances to the Company that said business
is,
in fact, a Minimal Producer. To "engage in or carry on" shall mean to have
ownership in such business or consult, work in, direct or have responsibility
for any area of such business, including but not limited to the following
areas:
operations, sales, marketing, manufacturing, procurement or sourcing,
purchasing, customer service, distribution, product planning, research, design
or development.
(c) During
the Restriction Period, Consultant certifies and agrees that he will notify
the
CEO of the Company of his employment or other affiliation with any potentially
competitive business or entity prior to the commencement of such employment
or
affiliation.
Exhibit
"A"
11
13. TERMINATION
BY COMPANY. Despite the term of this Agreement as set forth in Section 2
above,
the Company shall have the right to earlier terminate this
Agreement:
13.1 at
any
time with cause. In such case, Consultant shall receive, as the only obligation
of the Company the compensation earned through the date of termination but
not
yet paid to Consultant. For purposes of this Agreement and except as set
forth
elsewhere herein, Cause shall mean the good faith determination by the Company
that:
(a) Consultant
has neglected, failed or refused to perform the duties and Services as set
forth
in this Agreement;
(b) Consultant
has breached any of the provisions set forth in this Agreement;
(c) Consultant
has committed a willful or intentional act that could reasonably be expected
to
injure the reputation, business or business relationships of the Company;
or
(d) Consultant
has been convicted (including conviction on a nolo
contendere,
no
contest, or similar plea) of a felony or any crime involving fraud, dishonesty,
or moral turpitude.
With
respect to any of the matters set forth in (a) or (b) above, the Company
shall
provide Consultant notice of the deficiency and a reasonable opportunity
to
correct the deficiency (not to exceed thirty (30) days) prior to termination
of
this Agreement. In the event that the Company has given notice of a deficiency
and makes a determination that the deficiency has not been cured within a
reasonable period of time, this Agreement may be terminated for Cause.
13.2 automatically
upon the death of the Consultant. In such event, the Company shall pay
Consultant's estate the Compensation earned through the date of death but
not
yet paid to Consultant.
13.3 automatically
upon the inability of Consultant to satisfactorily perform the Services set
forth in Section 3 or as assigned to him by the CEO from time to time by
reason
of mental or physical illness or injury for a period of thirty (30) days.
In
such event, the Company shall pay Consultant the Compensation earned but
unpaid
to Consultant through the date of termination.
Exhibit
"A"
12
14. ARBITRATION/COSTS. Any
dispute or controversy arising under or in connection with this Agreement
that
cannot be informally resolved shall be settled exclusively by arbitration
in
Spokane, Washington by a sole neutral arbitrator in accordance with the Rules
of
the American Arbitration Association relating to any disputes then in effect.
Judgment may be entered on the arbitrator’s award in any jurisdiction.
Notwithstanding the foregoing, nothing in this provision restricts in any
way
the Company’s right to seek injunctive or other equitable relief in any court to
enforce the Company’s rights pursuant to Sections 10, 11 and 12 of this
Agreement. The prevailing party in any such proceeding shall be entitled
to an
award of its reasonable costs, including attorney fees, in the discretion
of the
arbitrator or court as the case may be.
15. SOLE
AGREEMENT; AMENDMENT. This
Agreement constitutes the sole and entire understanding of the parties with
respect to the subject matter hereof and all prior written or oral agreements
or
understandings between the parties hereto are incorporated in and are superseded
by this Agreement. No modification or alteration of the terms of this Agreement
shall be binding unless such modification or alteration shall be in writing
and
executed subsequent to the date hereof by all parties. Time is of the essence
of
this Agreement.
16.
NOTICES.
Any notice, consent, approval, request, demand or other communication required
or permitted hereunder must be in writing to be effective and shall be deemed
delivered and received (i) if personally delivered or if delivered by telex
or
telecopy with electronic confirmation when actually received by the party
to
whom sent, or (ii) if delivered by mail (whether actually received or not),
at
the close of business on the fifth business day next following the day when
placed in the federal mail, postage prepaid, certified or registered mail,
return receipt requested, addressed as follows:
|
If
to Company:
|
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, CEO | ||
|
Idaho
General Mines, Inc.
▇▇▇▇
▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
|
Exhibit
"A"
13
|
with
a copy to:
|
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ | ||
|
Hull
& ▇▇▇▇▇▇▇▇▇▇▇ Chartered
▇.▇.
▇▇▇ ▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
(which
shall not constitute notice)
|
|||
|
If
to Consultant:
|
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||
|
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇ ▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Fax:
______________________
|
|||
|
with
a copy to:
|
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||
|
▇▇▇▇▇▇▇
▇▇▇▇▇▇, P.S.
▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
(which
shall not constitute notice)
|
17. GOVERNING
LAW. This Agreement shall be governed by and construed under the laws of
the
State of Washington, without regard to its conflict of laws principles.
18. SURVIVAL.
Upon the expiration or termination of this Agreement for any reason, the
provisions of Sections 10, 11, 12, 14 and 17 and the other covenants of the
parties that by their terms survive termination of this Agreement herein
(the
“Surviving Provisions”) shall survive and remain in full force and
effect.
Exhibit
"A"
14
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
dates
set forth below, effective as of the date first set forth above.
DATED
this _____ day of ______________, 2007.
| For and on behalf of Idaho General Mines, Inc. | ||
| |
|
|
| By: | ||
|
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, |
||
| Its Chief Executive Officer | ||
| Consultant: | ||
| |
|
|
|
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
||
Exhibit
"A"
15
EXHIBIT
“B”
This
Notice hereby confirms my immediate resignation as a Member of the Board
of
Directors of Idaho General Mines, Inc. and any of its affiliates or
subsidiaries.
By:
▇▇▇▇▇▇
▇.
▇▇▇▇▇▇▇