EXHIBIT 10.22
EMPLOYEE RELEASE AND SETTLEMENT AGREEMENT
The parties to this Agreement are USMX, Inc., a Delaware corporation
("USMX"), and Xxxx X. Xxxxxxx ("Xxxxxxx"). This document describes the
agreements of USMX and Xxxxxxx concerning Xxxxxxx'x resignation from his
positions with USMX and its subsidiaries (the "USMX Companies"). This Agreement
and the payments and other arrangements described below, give valuable
consideration to both USMX and Xxxxxxx.
1. Termination of Relationships: USMX and Xxxxxxx have agreed upon
Xxxxxxx'x resignation from his positions as an officer of USMX and as an officer
or director of any of the USMX Companies, as an employee of USMX and the USMX
Companies and in any other capacity with USMX and the USMX Companies, such
resignations to be effective March 31, 1997.
2. Payments and Other Arrangements:
(a) USMX agrees to pay to Xxxxxxx $61,000 payable in an initial
installment of $20,333.36 on April 15, 1997, and thereafter
payable in eight equal installments of $5,083.33 each, commencing
April 30, 1997 in accordance with USMX's regular payroll
practices, with the final installment due on August 15, 1997.
USMX also agrees to pay to Xxxxxxx fourteen days vacation in the
amount of $6,568.80 on or before April 15, 1997. All payments
shall include deductions for standard withholding and authorized
deductions. Xxxxxxx agrees that he shall be exclusively
responsible for payment of all taxes received by him pursuant to
this Agreement.
(b) Xxxxxxx agrees that all options held by him to acquire shares of
stock of USMX will terminate on April 30, 1997.
(c) Xxxxxxx agrees that USMX will make no further contribution in
respect of him to any benefit plans maintained by or for the USMX
Companies.
3. Release by Xxxxxxx: Xxxxxxx releases and waives all claims for
loss, damage or injury arising from or in any way relating to the
following ("Claims"):
(a) the employment of Xxxxxxx with USMX, including his positions as
an officer of USMX and as an officer and member of the Board of
Directors of certain of the USMX Companies, and his resignation
from employment and his positions with the USMX Companies;
(b) discrimination on the basis of age, sex, race, religion, national
origin or another basis, including claims under the Age
Discrimination in Employment Act;
(c) other violations of federal, state or local statutes, ordinances,
regulations, rules, decisions or laws;
(d) failure to act in good faith and deal fairly;
(e) injuries, illness or disabilities of Xxxxxxx;
(f) exposure of Xxxxxxx to toxic or hazardous materials;
(g) stress, anxiety or mental anguish;
(h) sexual harassment;
(i) defamation based on statements of Xxxxxxx or others;
(j) breach of an express or implied employment contract, change in
control contract or other agreement;
(k) compensation or reimbursement of Xxxxxxx;
(l) unfair employment practices; and
(m) any act or omission by or on behalf of any of the USMX Companies.
4. Claims Included: The Claims released and waived by Xxxxxxx
include claims:
(a) arising before the date of this Agreement;
(b) arising on or after the date of this Agreement that relate to
Xxxxxxx'x employment by USMX;
(c) that are presently known, suspected, unknown or unsuspected;
(d) for reinstatement or future employment;
(e) for actual, consequential, punitive or special damages;
(f) for attorney's fees, costs, experts' fees and other expenses of
investigating, litigating or settling Claims; and
(g) against any of the USMX Companies and their respective
affiliates, employees, officers, directors, agents, attorneys and
contractors.
5. Claims Excluded: Xxxxxxx does not release or waive Xxxxxxx'x
right to recover under health, life or disability policies
insuring Xxxxxxx, and does not release or waive Claims for breach
of this Agreement or for worker's compensation benefits. In
addition, the provisions of this Agreement shall not affect the
right, if any, of Xxxxxxx to indemnification under USMX's Bylaws,
nor shall it enlarge any such right. Xxxxxxx has requested that,
until further notice by him to USMX, he wishes to continue as a
participant in USMX's medical insurance program under the
provisions generally known as COBRA. USMX agrees to pay the
premiums for such continuation through and including September
30, 1997.
6. Agreement Not To Xxx of Xxxxxxx: Xxxxxxx waives any right to file
suit for any Claim. Xxxxxxx will not xxx any of the USMX
Companies for any Claim. Xxxxxxx will not initiate or proceed
with any other action or proceeding against any of the USMX
Companies that relates to something that could give rise to a
Claim.
7. Termination of Relationships: Xxxxxxx and USMX acknowledge that
any employment or contractual relationship between them has
terminated and that they have no further employment or
contractual relationship except as may arise out of this
Agreement and that Xxxxxxx waives any right or claim to
reinstatement as an employee of USMX and will not seek employment
in the future with any of the USMX Companies.
8. No USMX Admission: USMX does not admit any wrongdoing or
liability. USMX has executed this Agreement solely to avoid the
expense of potential litigation. The payments and other
arrangements described above compromise and settle any Claims of
Xxxxxxx.
9. Revocability: Either Xxxxxxx or USMX may revoke this Agreement in
its entirety during the seven days following execution of the
Agreement by Xxxxxxx. Any revocation of the Agreement must be in
writing and hand-delivered during the revocation period. This
Agreement will become enforceable seven days following execution
by Xxxxxxx, unless it is revoked during the seven-day period.
10. Confidences: Xxxxxxx will maintain the confidentiality of all of
the USMX Companies' trade secrets, proprietary information,
insider information, security procedures and other confidences
that came into Xxxxxxx'x possession or knowledge during
employment by USMX. Xxxxxxx will not use such information
concerning the USMX Companies' business prospects or practices to
profit Xxxxxxx or others.
11. Property: Xxxxxxx represents that Xxxxxxx possesses no property
of the USMX Companies with the exception of an Acura automobile.
On or before April 15, 1997, Xxxxxxx shall pay $1 to USMX and
USMX shall transfer title to the Acura automobile to Xxxxxxx.
Xxxxxxx will promptly return any other property pertaining to his
work with USMX, including keys and credit cards, without request
or demand by USMX.
12. Loan to Xxxxxxx from Norwest Bank. Effective January 27, 1997,
Xxxxxxx has borrowed $115,294.10 from Norwest Bank Colorado N.A.
("Norwest"), which indebtedness (the "Loan") is secured by an
uncertificated deposit in the name of USMX in the amount of
$123,130.97 issued by Norwest (the "Security"). This Loan
constituted a renewal of a loan in the original principal amount
of $107,063.78 made by Norwest to Xxxxxxx on or about December
22, 1995. Pursuant to a Letter Agreement dated December 22, 1995
between USMX and Xxxxxxx, it was agreed that the Loan would be
for a term of one year. Xxxxxxx acknowledges the extension of the
Loan for an additional one year and the provision by USMX of an
uncertificated deposit for another one year period. USMX agrees
that it will provide the Security as collateral for the repayment
of the Loan to and including September 30, 1998. The Letter
Agreement and the Stock Pledge and Security Agreement, also dated
December 22, 1995, also concern Xxxxxxx'x pledge of his 56,449
shares of the common stock of USMX (the "Stock") to secure
repayment of any amounts paid by USMX in connection with its
pledge of the Security. It is understood that the certificate
evidencing the Stock is currently in the possession of USMX.
Xxxxxxx has also agreed in the Letter Agreement to hold harmless
USMX for any and all amounts arising in connection with the Loan.
Xxxxxxx acknowledges and agrees that the Letter Agreement and
Stock Pledge and Security Agreement are in full force and effect
and shall apply to the current Loan and any extensions, renewals
or replacements thereof. Xxxxxxx waives any right to any action
or defense against USMX and shall hold harmless USMX in
connection with exercise by USMX of any of USMX's rights against
the Stock, including USMX's right to retain any part or all of
the Stock in satisfaction of Xxxxxxx'x obligations pursuant to
the Letter Agreement and Stock Pledge and Security Agreement.
Xxxxxxx reserves the right to assert defenses to any claim by
USMX for costs incurred by USMX in connection with the Loan, if
any, which exceed the value realized by USMX from the Stock
pursuant to the Loan Agreement and Stock Pledge and Security
Agreement. Xxxxxxx acknowledges that USMX has entered into an
agreement to merge with Dakota Mining Corporation pursuant to
which USMX stockholders will receive common stock of Dakota in
exchange for common stock of USMX. Xxxxxxx agrees to cooperate by
providing further assurances or documentation in connection with
the exchange of Dakota common stock for USMX common stock and
understands and agrees that, subsequent to the merger, the Stock
which shall be pledged to USMX will be stock of Dakota in the
name of Xxxxxxx instead of stock of USMX in the name of Xxxxxxx.
13. References: The USMX Companies may respond to inquiries from
third parties about Xxxxxxx'x employment with USMX by identifying
Xxxxxxx'x date of hire, date of resignation and position held at
the time of termination of employment. USMX will have no
obligation to provide further information to prospective
employers of Xxxxxxx.
14. Entire Agreement; Amendments: This is the entire agreement
concerning the termination of Xxxxxxx'x employment with USMX.
Xxxxxxx is not entitled to rely upon any other written or oral
offer or agreement with USMX. This Agreement can be modified only
by a document signed by both parties. Xxxxxxx acknowledges that
the only promises made to cause Xxxxxxx to sign this Agreement
are those stated in this Agreement.
15. Successors: This Agreement benefits and binds the parties'
successors.
16. Governing Law and Severability of Power: This Agreement will be
interpreted in accordance with the laws of the State of Colorado.
If any portion of this Agreement is unenforceable, the remaining
portions of the Agreement will remain enforceable.
17. Fees and Costs: If litigation is commenced concerning Xxxxxxx'x
employment or this Agreement, the prevailing party shall be
entitled to an award of reasonable attorneys' fees and expenses,
court costs, experts' fees and expenses, and all other expenses
of litigation.
18. Counterparts: This Agreement may be executed in counterparts, and
each counterpart, when executed, shall have the efficacy of a
signed original. Photographic copies of such signed counterparts
may be used in lieu of the originals for any purpose.
19. Xxxxxxx Acknowledgements. Xxxxxxx understands that this Agreement
is a final and binding waiver of any claims against USMX. Xxxxxxx
acknowledges that he was given 21 days to consider this Agreement
and chose to sign the Agreement prior to the expiration of the
21-day period. Xxxxxxx acknowledges that Xxxxxxx has been told by
USMX to consult with an attorney prior to signing this Agreement.
Xxxxxxx represents that this Agreement has been fully explained
by Xxxxxxx'x attorneys, or that Xxxxxxx has waived consultation
with an attorney.
USMX, INC.
/s/ Xxxx X. Xxxxxxx By: /s/ Xxxxxxx Xxxxx
XXXX X. XXXXXXX
Date: April 8, 1997 Date: April 8, 1997
