EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the 26th day of November, 1997, effective the first
day of the term hereof, among PEGASUS GOLD CORPORATION, a Nevada corporation
with its principal office in Spokane, Washington, herein referred to as the
"Corporation," PEGASUS GOLD INC., a British Columbia corporation with its
principal office in Spokane, Washington, herein referred to as "Pegasus," and
XXXXXXXX X. XXXX of Spokane, Washington, herein referred to as the "Employee."
In consideration of the mutual covenants and benefits as herein set forth, the
parties hereto agree as follows:
SECTION ONE
EMPLOYMENT
The Corporation hereby employs the Employee as its Treasurer and the Employee
hereby agrees to continue to devote all of her efforts for the benefit of the
Corporation and to faithfully, industriously and, to the best of her ability,
experience and talents, perform all of her required and assigned duties.
Employee shall perform the duties of Treasurer subject to the general
supervision of and pursuant to the orders, advice and direction of the Chief
Financial Officer of the Corporation.
Employee shall also render such other reasonable and unrelated services and
duties as may be assigned to her from time to time by the Chief Financial
Officer of the Corporation and accepted by the Employee.
SECTION TWO
TERM OF EMPLOYMENT
The term of employment under this Agreement shall commence November 26, 1997 and
shall continue thereafter until terminated as hereinafter provided.
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SECTION THREE
COMPENSATION
The Corporation shall pay Employee, and the Employee shall accept from the
Corporation, compensation at the minimum rate of U.S.$150,000.00 per year,
prorated and payable semi-monthly or on such other basis as the parties may
hereafter agree. Such minimum compensation may be adjusted for merit or other
raises as from time to time determined by the President or the Board of
Directors or any Committee thereof having such authority. Employee shall be
entitled to vacation periods in line with the policies of the Corporation
applicable to exempt employees; provided, however, that the Employee shall be
entitled to a minimum paid vacation of four (4) weeks in any calendar year.
SECTION FOUR
OTHER BENEFITS
In addition to the compensation as provided in the previous Section Three
hereof, Corporation shall at its expense provide for Employee the following
additional benefits:
1. Participation in all of Corporation's benefit plans, including medical,
dental, vision, disability and any and all other similar plans that may be
made available to employees; medical, dental and vision insurance shall be
effective on the first day of the term hereof.
2. An allowance of not to exceed Four Hundred Twenty-Five Dollars ($425.00)
per month to acquire and operate a current model automobile for business
and personal use. Said allowance may be adjusted if the cost to acquire
and operate increases.
3. Monthly parking allowance in accordance with corporate policy.
4. Family membership at the Spokane Club and payment of dues for such
membership.
5. Reimbursement for all expenses incurred in connection with the performance
of services to the Corporation, including entertainment and travel and
other expenses incidental to the duties undertaken hereunder; provided,
however, that such expenses shall be reasonable and necessary and that
Employee shall
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submit bills and vouchers supporting requests for reimbursements in
accordance with the Corporation's policies.
6. Appropriate office and staff assistance in Spokane, Washington, which it is
agreed shall be the place of principal employment during the term of this
Agreement.
7. Such directors and officers liability insurance as may be available to
adequately provide both insurance coverage and reimbursement of legal costs
for any actions brought against the Employee for any of her activities in
the employment of the Corporation.
8. Participation in the Corporation's bonus plan and 401(k) plan.
SECTION FIVE
TERMINATION
This Agreement will terminate or may be terminated for any one of the following
reasons:
1. Voluntarily and without cause, subject to Sections Two and Six (2), upon at
least three (3) months prior written notice of termination by Corporation
to the Employee or by the Employee to the Corporation; or
2. By the Corporation for cause as hereinafter defined in Section Ten; or
3. Upon the death or disability of Employee; or
4. Upon a Change of Control; or
5. Upon retirement.
SECTION SIX
SEVERANCE COMPENSATION
1. TERMINATION BY EMPLOYEE OR BY CORPORATION WITH CAUSE. If Employee shall
voluntarily terminate her employment under this Agreement pursuant to
Section 5(1) or if the employment of the Employee is terminated by the
Corporation for
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cause, then all compensation and benefits as heretofore provided in
Sections 3 and 4 shall terminate immediately upon the effective date of
termination and no special severance compensation will be paid.
2. TERMINATION BY CORPORATION WITHOUT CAUSE. If, on or after the effective
date of this Agreement, the Corporation should terminate this Agreement for
any reason except cause as defined in Section Ten, then upon the effective
date of termination the Corporation shall pay to Employee an amount equal
to twenty-four (24) months' salary. The amount shall be paid in one lump
sum on the date the Employee's services terminate, and shall be secured by
an irrevocable letter of credit issued by a United States banking
institution, such letter of credit to be issued on or before the expiry of
thirty (30) days from the date hereof. Employee benefits provided to the
Employee under Section Four, paragraph 1 shall be continued as if the
Employee were still an employee of the Corporation for a period of one (1)
year from the date of termination or until equal or better benefits are
provided by a new employer, whichever shall first occur. In the event
Employee has existing stock options, they will be honored in accordance
with the terms of said options. Corporation shall also provide to Employee
employment search assistance by a firm mutually acceptable to Corporation
and Employee, to secure comparable employment, the cost of which shall not
exceed $25,000.00.
3. TERMINATION BY DEATH OR DISABILITY. If Employee dies or becomes disabled
before her employment is otherwise terminated, the Corporation shall
immediately pay an amount of compensation equal to six (6) months' salary
as if Employee had been terminated without cause and all employee benefits
under Section four, paragraphs 1 and 4 theretofore provided to Employee
shall be continued for a period of one (1) year from the date of death or
disability as if Employee were still an employee of the Corporation. If
such termination is due to Employee's death, payment shall be made in one
lump sum to her beneficiary, to be named in writing by Employee on signing
this Agreement, which designation may be changed at any time by written
notice signed by Employee and delivered to the Secretary of the
Corporation; if no named beneficiary survives Employee, the entire amount
shall be paid to her estate. If such termination is due to Employee's
disability, payment shall be made in one lump sum to Employee. Said
compensation shall be in addition to that payable from any insurance
coverage providing compensation upon Death or Disability. "Disability" in
this Agreement shall mean a condition of physical or mental illness causing
Employee to be totally incapable of performing full-time duties.
4. TERMINATION FOLLOWING CHANGE OF CONTROL
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(a) For purposes of this Agreement, a Change in Control shall be deemed to
have occurred if (A) any individual, partnership, firm, corporation,
association, trust, unincorporated organization or other entity, or
any syndicate or group deemed to be a person under Section 14(d)(2) of
the Securities Exchange Act of 1934, as amended ("Exchange Act"), is
or becomes the "beneficial owner" (as defined in Rule 13d-3 of the
General Rules and Regulations under the Exchange Act), directly or
indirectly, of securities of the Corporation representing 25% or more
of the combined voting power of the Corporation's then outstanding
securities entitled to vote in the election of directors of the
Corporation; or (B) during any period of two (2) consecutive years
(not including any period prior to the effective date of this
Agreement), individuals who at the beginning of such period
constituted the Board and any new directors, whose election by the
Board or nomination for election by the Corporation's stockholders was
approved by a vote of at least three quarters (3/4) of the directors
then still in office who either were directors at the beginning of the
period or whose election or nomination for election was previously so
approved, cease for any reason to constitute a majority thereof.
(b) Irrespective of any other provisions in this Agreement regarding
termination, if either of the events described above constituting a
Change in Control shall have occurred, upon the subsequent termination
of Employee's employment (unless such termination is because of
Employee's death or disability, by the Corporation for cause or by
Employee other than for "Good Reason") Employee shall be entitled to
and will receive no later than the fifth (5th) day following the date
of termination a lump sum severance payment equal to two and one half
(2-1/2) times Employee's then current annual base salary. In
addition, all benefits then applicable to Employee shall be continued
for a period of twenty-four (24) months.
(c) Employee shall be entitled to terminate her employment for Good
Reason. For purposes of this Agreement, "Good Reason" shall mean,
without Employee's express written consent, any of the following:
(i) the assignment to Employee of any duties inconsistent with
Employee's status as Treasurer of the Corporation, or
Employee's removal from such position, or a substantial
alteration in the nature or status of Employee's
responsibilities from those in effect immediately prior to the
Change in Control;
(ii) a reduction by the Corporation in Employee's annual base salary
as in effect on the date hereof or as the same may have been
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increased from time to time or a failure by the Corporation to
increase Employee's salary at a rate commensurate with that of
other key executives of the Corporation;
(iii) the relocation of the office of the Corporation where Employee
is employed at the time of the Change in Control (the "CIC
Location") to a location more than fifty (50) miles away from
the CIC Location or the Corporation's requiring Employee to be
based more than fifty (50) miles away from the CIC Location
(except for required travel on the Corporation's business to an
extent substantially consistent with Employee's business travel
obligations just prior to the Change in Control);
(iv) the failure by the Corporation to continue to provide Employee
with benefits at least as favorable as those enjoyed by
Employee under any of the Corporation's life insurance,
medical, health and accident, disability, deferred
compensation, or savings plans in which Employee was
participating at the time of the Change in Control, the taking
of any action by the Corporation which would directly or
indirectly materially reduce any of such benefits or deprive
Employee of any material fringe benefit enjoyed by Employee at
the time of the Change in Control, or the failure by the
Corporation to provide Employee with the number of paid
vacation days to which Employee is entitled on the basis of
years of service with the Corporation in accordance with the
Corporation's normal vacation policy in effect at the time of
the Change in Control; or
(v) the failure of the Corporation to obtain a satisfactory
agreement from any successor to assume and agree to perform
this Agreement or, if the business of the Corporation for which
Employee's services are principally performed is sold at any
time after a Change in Control, the purchaser of such business
shall fail to agree to provide Employee with the same or a
comparable position, duties, salary and benefits as provided to
Employee by the Corporation immediately prior to the Change in
Control.
(d) In the event of termination of Employee by reason of either a Change
in Control or for "Good Reason" as herein defined then, in addition to
the severance payment as provided in paragraph 4(b) hereof, Employee
shall be entitled to the following:
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(i) Employment search assistance to secure other comparable
employment for a period not to exceed one (1) year or until
such comparable employment is found, whichever is the sooner,
with the fees for such assistance paid by the Corporation;
(ii) Protection for the sale of Employee's residence in the amount
of the original purchase price, plus major improvements, or the
net realized therefrom; and
(iii) Payment of the cost of a one time move to a new location in the
event such a move becomes necessary in order for Employee to
accept new employment.
SECTION SEVEN
NON-TRANSFERABILITY
This is a personal agreement. None of Employee's rights, benefits or interests
hereunder may be subject to sale, anticipation, alienation, assignment,
encumbrance, charge, pledge, hypothecation, transfer, or set-off in respect of
any claim, debt or obligation or to execution, attachment, levy or similar
process, or to assignment by operation of law. Any attempt, voluntary or
involuntary, to effect any such action shall be null, void and of no effect.
SECTION EIGHT
CHOICE OF LAW
It is the intention of the parties hereto that this Agreement and the
performance hereunder and all suits and special proceedings hereunder be
construed in accordance with and under and pursuant to the laws of the State of
Washington and that in any action, special proceeding or other proceeding that
may be brought arising out of, in connection with, or by reason of this
Agreement, the laws of the State of Washington shall be applicable and shall
govern, to the exclusion of the law of any other forum, without regard to the
jurisdiction in which any action or special proceeding may be instituted.
SECTION NINE
BINDING EFFECT
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This Agreement shall be binding upon and shall inure to the benefit of the
Corporation, its successors or assigns, and to Employee, and her personal
representatives, heirs, executors and administrators.
SECTION TEN
DEFINITION OF CAUSE
Cause to terminate the Employee's employment shall mean (a) the willful and
continued failure by the Employee to substantially perform her duties, after
demand for substantial performance is delivered by the Corporation that
specifically identifies the manner in which the Corporation believes the
Employee has not substantially performed her duties, or (b) the willful
engagement by the Employee in misconduct which is materially injurious to the
Corporation, monetarily or otherwise, or (c) the willful violation by the
Employee of the provisions of this Employment Agreement.
Notwithstanding the foregoing, the Employee shall not be deemed to have been
terminated for cause unless there shall have been delivered to the Employee a
copy of a notice of termination from the Corporation and, after reasonable
written notice, Employee and her counsel have been given an opportunity to be
heard by the Board of Directors of the Corporation and thereafter a resolution
has been duly adopted by the Directors of the Corporation then in office to the
effect that, in the good faith opinion of such Directors, the Employee was
guilty of conduct set forth above, which resolution shall set forth in
particular detail the facts and circumstances claimed to provide a basis for
termination of employment under the provisions so indicated.
SECTION ELEVEN
DIRECTORSHIPS
The Employee shall be entitled to accept positions as director of other
corporations, whether such corporations are engaged in the mining industry or
not, provided any such directorship is first approved by the Corporation, which
approval shall not be unreasonably withheld.
SECTION TWELVE
REPRESENTATIONS
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The Corporation and Pegasus jointly and severally represent and warrant to the
Employee, with the intent that Employee shall rely on such representations and
warranties in entering into this Agreement, as follows:
1. The common shares of Pegasus are listed for trading on the Toronto Stock
Exchange, Montreal Exchange and American Stock Exchange.
2. The financial statements, reports, and other information provided by the
Corporation, Pegasus and their respective officers and employees, both
orally and in writing, constitute complete and accurate disclosures of the
status of the affairs of Pegasus and the Corporation and the Corporation
and Pegasus do not know of any other information which, if disclosed to the
Employee, might reasonably be expected to cause the Employee to refrain
from agreeing to continued employment with the Corporation or affect the
value of Pegasus' shares.
SECTION THIRTEEN
CONFIDENTIALITY
Employee agrees that, except as required for the performance of her duties,
obligations and responsibilities hereunder, she will not at any time during the
term of this Agreement or thereafter divulge to any person, firm or corporation
any Confidential Information received by her during the course of her employment
and all such Confidential Information shall be kept confidential and deemed to
be the property of Corporation. For the purpose of this provision,
"Confidential Information" means information known to the Employee as a
consequence of her employment by Corporation and not generally known in the
industry in which the Corporation is engaged or not otherwise available to third
parties from sources unrelated to or controlled by Corporation.
SECTION FOURTEEN
SUPERSEDING EFFECT
This Agreement replaces and supersedes any and all prior contracts,
understandings and agreements among the parties relating to Employee's
employment.
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IN WITNESS WHEREOF, the parties have executed this Agreement at Spokane,
Washington as of the day and year first above written.
PEGASUS GOLD CORPORATION
By
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Its President and Chief Executive Officer
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PEGASUS GOLD INC.
By
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Its President and Chief Executive Officer
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EMPLOYEE:
By
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Name: Xxxxxxxx X. Xxxx
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Address: 0000 X. Xxxxx
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Xxxx, Xxxxx: Spokane, Washington
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Zip Code: 99223
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Telephone Number: 000.000.0000
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SS#:
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DESIGNATION OF BENEFICIARY
On this _____ day of November, 1997, Employee hereby designates Xxxx Xxxx, her
spouse, as her beneficiary for purposes of receiving, upon her death,
compensation and benefits under Section Six, Paragraph 3, hereof.
By
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