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EXHIBIT 10(n)
AGREEMENT FOR CONSULTING SERVICES
THIS AGREEMENT, made and entered into effective as of March 1, 1997,
by and between BATTLE MOUNTAIN GOLD COMPANY, a Nevada corporation with its
principal office at 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxx 00000,
(hereinafter referred to as the "Company"), and Xx. Xxxx X. Xxxxx, an
individual residing at 0000 Xxxxxxxx, Xxxxxxx, Xxxxx 00000.
W I T N E S S E T H:
WHEREAS, Xx. Xxxxx has been employed by the Company from May 11, 1987
through February 28, 1997; and
WHEREAS, during Xx. Xxxxx' service with the Company, he has developed
experience, knowledge and unique relationships and skills that are valuable to
the Company; and
WHEREAS, Xx. Xxxxx and the Company have agreed that Xx. Xxxxx will
separate from active employment with the Company effective on February 28,
1997; and
WHEREAS, the Company desires to engage Xx. Xxxxx as a consultant on
the terms and conditions set forth below in order to retain access to his
experience, knowledge and unique relationships and skills; and
WHEREAS, Xx. Xxxxx desires to be engaged as a consultant to the
Company on the terms and conditions set forth below;
NOW, THEREFORE, for and in consideration of the mutual promises and
agreement set forth herein, the parties hereto agree as follows:
1. Engagement as Consultant: The Company agrees to retain the
services of Xx. Xxxxx as an independent consultant and Xx. Xxxxx agrees to
render consulting services for the period described in Paragraph 3 hereof and
upon the other terms and conditions herein provided.
2. Responsibilities of Consultant: During the period of this
Agreement, Xx. Xxxxx shall act as an independent contractor and agrees to
render to the Company and its affiliates consulting services. During the term
of this Agreement, Xx. Xxxxx shall, at reasonable times and places, hold
himself available to consult with and advise the officers, directors and other
representatives of the Company. Xx. Xxxxx shall use his best professional
skills in rendering the desired services to the Company and shall be free to
use his judgment and discretion as to the methods to be used in performance of
such services. The Company agrees that it shall have no right to control or
direct the details, manner or means by which Xx. Xxxxx accomplishes the results
of the services performed hereunder. Subject to the reasonable requests and
deadlines of the Company, Xx. Xxxxx shall retain discretion to set his own
schedule for the performance of such services and shall have no obligation to
work any particular hours or days. Xx. Xxxxx shall
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retain the right to contract for similar services with other businesses or with
individuals. Xx. Xxxxx shall also retain the right to accept employment with
any entity.
3. Term of Agreement. The term of this Agreement shall be for a
period of ten (10) months beginning as of March 1, 1997 and ending December 31,
1997; provided, however, that the term of this Agreement shall be subject to
the provisions of Paragraph 5 (termination for cause). The term of this
Agreement may be shortened or extended by mutual consent of the parties.
4. Compensation. The Company shall pay or cause to be paid
$20,000.00 per month to or on behalf of Xx. Xxxxx for the performance of his
consulting services subject to the provisions of Paragraph 5 hereunder. The
Company shall also reimburse Xx. Xxxxx, promptly after receipt of appropriate
receipts and documentation, for all of his expenses, including meals, lodging,
transportation, phone and other out-of-pocket expenses, reasonably incurred in
connection with his performance of services under this Agreement. Xx. Xxxxx
shall be reimbursed at the standard mileage rate established by the Internal
Revenue Service for use of his personal automobile. Such amounts shall be paid
by the Company to Xx. Xxxxx in a manner mutually agreeable to both parties.
Xx. Xxxxx hereby waives all director's fees and per diem fees to which he would
otherwise be entitled for fiscal year 1997 in his capacity as a director of
Battle Mountain Gold Company.
5. Termination of Agreement for Cause. If, during the term of
this Agreement, this Agreement is terminated by the Company for cause as
defined in this Paragraph 5, then all payments of compensation under this
Agreement shall be forfeited, except Xx. Xxxxx shall thereafter be entitled to
compensation as described in Paragraph 4 hereof for service rendered under this
Agreement prior to the date of termination.
Termination by the Company for "cause" shall mean termination by
action of the President of the Company because of the failure of Xx. Xxxxx to
fulfill his obligations under this Agreement or because of serious willful
misconduct by Xx. Xxxxx in respect of his obligations under this Agreement,
such as, for example, the commission by Xx. Xxxxx of a felony or the
perpetration by Xx. Xxxxx of a common-law fraud against the Company.
6. Death or Disability. If, before December 31, 1997, Xx. Xxxxx
dies, or becomes totally and permanently disabled, the Company shall be
obligated to pay (in the case of death) to his beneficiary or beneficiaries
designated in writing, or to his estate in the absence or lapse of such
designation, or (in the case of such disability) to Xx. Xxxxx or his
representative, the compensation to which he is entitled under Paragraph 4
hereof for service rendered under this Agreement through the date of his death
or his total and permanent disability. For purposes hereof, "total and
permanent disability" means inability to perform the services required
hereunder due to physical or mental disability. Evidence of such disability
shall be certified by a physician acceptable to both the Company and Xx. Xxxxx.
7. Status of Benefit Plans. This Agreement shall not entitle Xx.
Xxxxx to participate in any executive compensation, pension, profit-sharing or
similar plan, policy or program or any
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welfare plan, policy or program of the Company now existing or hereafter
adopted for the benefit of its employees.
8. Income Tax Withholding. The Company shall not withhold any
federal, state, city or other taxes from any compensation payable under this
Agreement. Xx. Xxxxx shall be solely and wholly responsible for payment of all
taxes related to payments made by the Company to or for the benefit of Xx.
Xxxxx under this Agreement.
9. Consolidation, Merger or Sale of Assets. Nothing in this
Agreement shall preclude the Company from consolidating or merging into or
with, or transferring all or substantially all of its assets to, another
corporation which assumes this Agreement and all obligations and undertakings
of the Company hereunder. Upon such a consolidation, merger or transfer of
assets and assumption, the term "Company" as used herein, shall mean such other
corporation and this Agreement shall continue in full force and effect.
10. Source of Payments. All payments provided in this Agreement
shall be paid in cash from the general funds of the Company, and no special or
separate funds shall be established and no other segregation of assets shall be
made to assure payment. Xx. Xxxxx shall have no right, title or interest
whatever in or to any investments which the Company may make to aid the Company
in meeting its obligations hereunder. Nothing contained in this Agreement, and
no action taken pursuant to this provision, shall create or be construed to
create a trust of any kind, or a fiduciary relationship, between the Company
and Xx. Xxxxx or any other person. To the extent that any person acquires a
right to receive payments from the Company hereunder, such rights shall be no
greater than the right of an unsecured creditor of the Company.
11. General Provisions.
(a) Nonassignability. Neither this Agreement nor any
right or interest hereunder shall be assignable by Xx. Xxxxx, his
beneficiaries or legal representatives without the Company's prior
written consent; provided, however, nothing in this Paragraph 11(a)
shall preclude (i) Xx. Xxxxx from designating a beneficiary to receive
any payment hereunder upon his death, or (ii) the executors,
administrators or other legal representatives of Xx. Xxxxx or his
estate from assigning any rights hereunder to the person or persons
entitled thereunto.
(b) No Attachment. Except as required by law, no right
to receive payments under this Agreement shall be subject to
anticipation, commutation, alienation, sale, assignment, encumbrance,
charge, pledge, hypothecation, execution, attachment, levy or similar
process or assignment by operation of law, and any attempt, voluntary
or involuntary, to effect such action shall be null, void and of no
effect.
(c) Binding Effect. This Agreement shall be binding upon
and inure to the benefit of the Company, its successors and assigns
(including, without limitations, any company into or with which the
Company may merge or consolidate). The Company agrees that it will
not effect the sale or other disposition of substantially all of its
assets unless either (i) the person or entity acquiring such assets or
a substantial portion thereof
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shall expressly assume by an instrument in writing all duties and
obligations of the Company hereunder or (ii) the Company shall
provide, through the establishment of a separate reserve therefor, for
the payment in full of all amounts which are or which may reasonably
be expected to become payable to Xx. Xxxxx hereunder.
12. Modification and Waiver.
(a) Amendment of Agreement. This Agreement may not be
modified or amended except by an instrument in writing signed by the
parties hereto.
(b) Waiver. No term or condition of this Agreement shall
be deemed to have been waived, nor shall there be an estoppel against
the enforcement of any provision of this Agreement, except by written
instrument of the party charged with such waiver or estoppel. No such
written waiver shall be deemed a continuing waiver unless specifically
stated therein, and each such waiver shall operate only as to the
specific term or condition waived and shall not constitute a waiver of
such term or condition for the future or as to any act other than that
specifically waived.
13. Headings. The headings of Paragraphs herein are included
solely for convenience and reference and shall not control the meaning or
interpretation of any of the provisions of this Agreement
14. Governing Law. This Agreement has been executed in Houston,
Texas, and its validity, interpretation, performance and enforcement shall be
governed by the laws of the State of Texas. For the purposes of this
Agreement, a signed facsimile shall constitute an original.
15. Effect of Prior Agreements. This Agreement shall revoke and
supersede any and all prior agreements between Xx. Xxxxx and the Company or any
predecessor of the Company except for that certain letter agreement between the
Company and Xx. Xxxxx dated February 28, 1997 and the agreements referenced in
the attachment thereto.
16. Confidentiality. In providing consulting services to the
Company, Xx. Xxxxx will become acquainted with information proprietary to the
Company. Xx. Xxxxx agrees to maintain such information and any materials
provided to him in confidence and, upon termination of this Agreement, to
return to the Company all Company materials in his possession and thereafter
not to divulge or to disclose any information acquired from the Company to
other parties without the express written consent of the Company. Xx. Xxxxx
will be excused from this obligation with respect to any information which
shall become part of the public domain other than through a breach of this
confidentiality obligation following the termination of this Agreement. This
provision shall survive for a period of two (2) years after the termination of
this Agreement.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed and its seal to be affixed hereunto by its officers thereunto duly
authorized, and Xx. Xxxxx has signed this Agreement, all as of the day first
above written.
BATTLE MOUNTAIN GOLD COMPANY
By______________________________________
ATTEST:
__________________________
________________________________________
Xxxx X. Xxxxx
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