Exhibit
10.5
INDUSTRIAL MINERALS, INC., for
and on behalf of itself as well as its affiliated corporations (collectively referred to
as the “Company”), and MR. XXXX XXXXXX (the “Employee”) agree to
enter into this EMPLOYMENT AGREEMENT (the “Agreement”) dated as of July
1st, 2007, as follows:
The
Company shall employ Employee, and Employee shall be employed by the Company upon the
terms and subject to the conditions set forth in this Agreement.
The
period of Employee’s employment under this Agreement shall begin as of July
1st, 2007 and shall continue thereafter until terminated in accordance with the
circumstances set out in Section 5 as well as the provisions of this Agreement.
| 3. |
Duties and Responsibilities. |
| (a) |
Employee shall serve as Chief Operating Officer. In such capacity,
Employee shall perform such duties as may be assigned to Employee from time to
time by the Company. |
| (b) |
Employee shall faithfully serve the Company, devote Employee’s full working
time, attention and energies to the business of the Company and perform the
duties under this Agreement to the best of Employee’s abilities. |
| (c) |
Employee shall: (i) comply with all applicable laws, rules and regulations, and
all requirements of all applicable regulatory, self-regulatory, and
administrative bodies; (ii) comply with the Company’s rules, procedures,
policies, requirements, and directions; and (iii) not engage in any other
business or employment without the written consent of the Company except as
otherwise specifically provided herein. |
| 4. |
Compensation and Benefits. |
| (a) |
Base Salary. During the Employment Term, the Company shall pay Employee a
base salary at the annual rate of one hundred and thirty-five thousand (C$135,000)
Canadian dollars per year (“Base Salary”). Such Base Salary shall be
paid in accordance with the Company’s standard payroll practice for
employees. |
| (b) |
Benefit Plans. Employee shall be eligible to participate in or receive
benefits under any pension plan, profit sharing plan, medical and dental
benefits plan, life insurance plan, short-term and long-term disability plans,
supplemental and/or incentive compensation planpractices or arrangements, or any
other benefit plan or arrangement, generally made available by the Company to
employees of similar status and responsibilities (“similarly situated
employees”). |
| (c) |
Incentive/Bonus. Employee shall be eligible for an annual bonus or any
other incentive compensation payment (“bonus”) which the Company may
establish for similary situated employees. |
| (d) |
Stock Options. Employee shall be awarded one million two hundred thousand (1,200,000) stock
options, the award, vesting and exercise of which stock options shall be subject
to the provisions of the Company’s Stock Option Grant Agreement. |
| (e) |
Vacation. Employee shall be entitled to four (4) weeks’ paid
vacation each calendar year. The scheduling of any vacation time must be
approved by the Employer. Vacation time will not be accumulated from year to
year and any unused entitlement will be forfeited provided, however, that the
Employer will provide any vacation pay entitlements pursuant to applicable
employment standards legislation. |
| (f) |
Business Expenses. The Company shall promptly reimburse Employee for the
ordinary and necessary business expenses incurred by Employee in the performance
of Employee’s duties hereunder in accordance with the Company’s
customary practices applicable to employees, provided that such expenses are
incurred and accounted for in accordance with the Company’s policy. |
| (g) |
Taxes. The Company shall be required to withhold from any compensation
and benefits payable under this Agreement all applicable taxes. |
| 5. |
Termination of Employment. |
Employee’s
employment shall be terminated under the following circumstances:
| (a) |
Death. Employee’s employment shall terminate as of the date of
Employee’s death. |
| (b) |
Total Disability. The Company may terminate Employee’s
employment hereunder upon Employee’s becoming Totally Disabled. For
purposes of this Agreement, Employee shall be “Totally Disabled” if
Employee is physically or mentally incapacitated so as to render Employee
incapable of performing the usual and customary duties under this Agreement.
Employee’s receipt of disability benefits under the Company’s
long-term disability plan or receipt of Social Security disability benefits
shall be deemed conclusive evidence of Total Disability for purpose of this
Agreement; provided, however, that in the absence of Employee’s receipt of
such long-term disability benefits or Social Security benefits, the Company may,
in its reasonable discretion (but based upon appropriate medical evidence),
determine that Employee is Totally Disabled. |
| (c) |
Termination by the Company for Cause. The Company may terminate
Employee’s employment hereunder for “Cause” at any time after
providing written notice to Employee. |
| |
(i) |
For purposes of this Agreement, the term “Cause” shall mean any of the
following: (A) conviction of a criminal offence; (B) deliberate and continual
refusal to perform employment duties reasonably requested by the Company or an
affiliate after thirty (30) days’ written notice by certified mail of such
failure to perform, specifying that the failure constitutes cause (other than as
a result of vacation, sickness, illness or injury); (C) fraud or embezzlement;
(D) gross misconduct or gross negligence in connection with the business of the
Company or an affiliate which has substantial effect on the Company or the
affiliate; or (E) breach of any of the covenants set forth in Section 7 hereof. |
| |
(ii) |
Any determination of Cause under this Agreement shall be made by the Company
after giving Employee a reasonable opportunity to be heard. |
| (d) |
Voluntary Termination by Employee. Employee may terminate employment
hereunder at any time after providing forty-five (45) days’ written notice
to the Company. |
| (e) |
Termination by the Company without Cause. The Company may terminate
Employee’s employment hereunder without Cause at any time after providing
written notice to Employee. |
| 6. |
Compensation
Following Termination of Employment. |
In
the event that Employee’s employment hereunder is terminated, Employee shall be
entitled to the following compensation and benefits upon such termination:
| (a) |
Termination by Reason of Death. In the event that Employee’s
employment is terminated by reason of Employee’s death, the Company shall
pay the following amounts to Employee’s beneficiary or estate: |
| |
(i) |
Any accrued but unpaid Base Salary for services rendered to the date of death,
any accrued but unpaid expenses required to be reimbursed under this Agreement,
and any vacation accrued to the date of death. |
| |
(ii) |
Any benefits to which Employee may be entitled pursuant to the plans, policies
and arrangements referred to in Section 4(c) hereof as determined and paid in
accordance with the terms of such plans, policies and arrangements. |
| |
(iii) |
An amount equal to the Base Salary (at the rate in effect as of the date of
Employee’s death) which would have been payable to Employee if Employee had
continued in employment for a six (6) month period following the date of death.
Such amount shall be paid in one lump sum within thirty (30) days of when
notification of the date of death has been given to the Company. |
| (b) |
Termination by Reason of Total Disability. In the event that
Employee’s employment is terminated by reason of Employee’s Total
Disability as determined in accordance with Section 5(b), the Company shall pay
the following amounts to Employee: |
| |
(i) |
Any accrued but unpaid Base Salary for services rendered to the date of
termination, any accrued but unpaid expenses required to be reimbursed under
this Agreement, any vacation accrued to the date of termination. |
| |
(ii) |
Any benefits to which Employee may be entitled pursuant to the plans, policies
and arrangements referred to in Section 4(c) hereof shall be determined and paid
in accordance with the terms of such plans, policies and arrangements. |
| |
(iii) |
An amount equal to the maximum amount of the long term disability benefits
payable to Employee under the Company’s long-term disability plan. |
| (c) |
Termination for Cause or Voluntary Termination by Employee. In the event
that Employee’s employment is terminated by the Company for Cause pursuant
to Section 5(c), or Employee terminates employment pursuant to Section 5(d), the
Company shall pay the following amounts to Employee: |
| |
(i) |
Any accrued but unpaid Base Salary for services rendered to the date of
termination, any accrued but unpaid expenses required to be reimbursed under
this Agreement, any vacation accrued to the date of termination. |
| |
(ii) |
Any benefits to which Employee may be entitled pursuant to the plans, policies
and arrangements referred to in Section 4(c) hereof shall be determined and paid
in accordance with the terms of such plans, policies and arrangements. |
| (d) |
Termination by the Company Without Cause. In the event that
Employee’s employment is terminated by the Company pursuant to Section 5(e)
without cause for reasons other than death, Total Disability or Cause, the
Company shall pay the following amounts to Employee: |
| |
(i) |
Any accrued but unpaid Base Salary for services rendered to the date of
termination, any accrued but unpaid expenses required to be reimbursed under
this Agreement, any vacation accrued to the date of termination. |
| |
(ii) |
Any benefits to which Employee may be entitled pursuant to the plans, policies
and arrangements referred to in Section 4(c) hereof shall be determined and paid
in accordance with the terms of such plans, policies and arrangements. |
| |
(iii) |
Any outstanding or unpaid Base Salary as of the date of Employee’s
termination. The Employee shall also be eligible for a bonus or incentive
compensation payment to the extent a bonus is justified, and to the extent
bonuses are paid to similarly situated employees, pro-rated for the year with
respect to the date of Employee’s termination, and paid when similarly
situated employees are paid. |
| |
(iv) |
An amount equal to the Base Salary (at the rate in effect as of the date of
Employee’s termination) which would have been payable to Employee if
Employee had continued in employment for a twelve (12) month period following
the date of death. Such amount shall be paid in accordance with the
Company’s standard payroll and pay period procedures. |
| |
(v) |
The Company completely at its expense will continue for Employee and
Employee’s spouse and dependents, group health plans, programs or
arrangements, in which Employee was entitled to participate as of the date of
termination, until the earlier of : (A) last day of period during which Employee
receives payment in accordance with clause (iii) above; (B) Employee’s
death (provided that benefits payable to Employee’s beneficiaries shall not
terminate upon Employee’s death); or (C) with respect to any particular
plan, program or arrangement, the date Employee becomes covered by a comparable
benefit provided by a subsequent employer. |
| (e) |
No Other Benefits or Compensation. Except as may be provided under this
Agreement, under the terms of any incentive compensation, employee benefit, or
fringe benefit plan applicable to Employee at the time of Employee’s
termination or resignation of employment, Employee shall have no right to
receive any other compensation, or to participate in any other plan, arrangement
or benefit, with respect to future periods after such termination or
resignation. |
| 7. |
Restrictive Covenants. |
| (a) |
Competitive Activity. Employee covenants and agrees that at all times
during Employee’s period of employment with the Company, and for a period
of one (1) year after the date of termination of Employee’s employment,
whether such termination is voluntary or involuntary, by wrongful discharge, or
otherwise, or the date of the cessation of payments made to the Employee
pursuant to Section 6 of this Agreement, whichever is later, Employee will not,
directly or indirectly, engage in, assist, or have any active interest or
involvement, whether as an employee, agent, consultant, creditor, advisor,
officer, director, stockholder (excluding a holding of less than 1% of the stock
of a public company), partner, proprietor or any type of principal whatsoever in
any person, firm, or business entity which, directly or indirectly, is engaged
in the same business as that conducted and carried on by the Company, without
the Company’s specific written consent to do so. |
| (b) |
Non-Solicitation. Employee covenants and agrees that at all times during
Employee’s period of employment with the Company, and for a period of one
(1) year after the date of termination of Employee’s employment, whether
such termination is voluntary or involuntary, by wrongful discharge, or
otherwise, or the date of the cessation of payments made to the Employee
pursuant to Section 6 of this Agreement, whichever is later, Employee will not
directly or indirectly (i) induce any customers of the Company or corporations
affiliated with the Company to patronize any similar business which competes
with any material business of the Company; (ii) canvass, solicit or accept any
similar business from any customer of the Company or corporations affiliated
with the Company; (iii) directly or indirectly request or advise any customers
of the Company or corporations affiliated with the Company to withdraw, curtail
or cancel such customer’s business with the Company; (iv) directly or
indirectly disclose to any other person, firm or corporation the names or
addresses of any of the customers of the Company or corporations affiliated with
the Company;or (v) directly or indirectly request, solicit, invite, suggest or
entice any employees of the Company to leave their employment with the Company. |
| (c) |
Non-Disparagement. Employee covenants and agrees that Employee shall not
engage in any pattern of conduct that involves the making or publishing of
written or oral statements or remarks (including, without limitation, the
repetition or distribution of derogatory rumors, allegations, negative reports
or comments) which are disparaging, deleterious or damaging to the integrity,
reputation or good will of the Company, its management, or of management of
corporations affiliated with the Company. |
| (d) |
Protected Information. Employee recognizes and acknowledges that Employee
has had and will continue to have access to various confidential or proprietary
information concerning the Company and corporations affiliated with the Company
of a special and unique value which may include, without limitation, (i) books
and records relating to operation, finance, accounting, sales, personnel and
management, (ii) policies and matters relating particularly to operations such
as customer service requirements, costs of providing service and equipment,
operating costs and pricing matters, and (iii) various trade or business
secrets, including business opportunities, marketing or business diversification
plans, business development and bidding techniques, methods and processes,
financial data and the like (collectively, the “Protected
Information”). Employee therefore covenants and agrees that Employee will
not at any time, either while employed by the Company or afterwards, knowingly
make any independent use of, or knowingly disclose to any other person or
organization (except as authorized by the Company) any of the Protected
Information. |
8.
Enforcement of
Covenants.
The
covenants contained in Section 7 hereof constitute a series of separate covenants. If in
any judicial proceeding, a court shall hold that any of the covenants set forth in Section
7 exceed the time, geographic, or occupational limitations permitted by applicable laws,
Employee and the Company agree that such provisions shall and are hereby reformed to the
maximum time, geographic, or occupational limitations permitted by such laws. Further, in
the event a court shall hold unenforceable any of the separate covenants deemed included
herein, then such unenforceable covenant or covenants shall be deemed eliminated from the
provisions of this Agreement for the purpose of such proceeding to the extent necessary to
permit the remaining separate covenants to be enforced in such proceeding. Employee and
the Company further agree that the covenants in Section 7 shall each be construed as a
separate agreement independent of any other provisions of this Agreement, and the
existence of any claim or cause of action by Employee against the Company whether
predicated on this Agreement or otherwise, shall not constitute a defense to the
enforcement by the Company of any of the covenants of Section 7.
9.
Non-Disclosure of
Agreement Terms.
Employee
agrees that Employee will not disclose the terms of this Agreement to any third party
other than Employee’s immediate family, attorney, accountants, or other consultants
or advisors or except as may be required by any governmental authority.
10.
Assignment.
Except
as otherwise provided in this Agreement, this Agreement shall inure to the benefit of and
be binding upon the parties hereto and their respective heirs, representatives, successors
and assigns. This Agreement shall not be assignable by Employee.
11.
Entire Agreement;
Amendment.
This
Agreement shall supersede any and all existing oral or written agreements,
representations, or warranties between Employee and the Company or any of its subsidiaries
or affiliated entities relating to the terms of Employee’s employment by the Company.
It may not be amended except by a written agreement signed by both parties.
12.
Governing Law.
This
Agreement shall be governed by and construed in accordance with the laws in force in the
Province of Ontario, Canada.
13.
Notices.
Any
notice, consent, request or other communication made or given in connection with this
Agreement shall be in writing and shall be deemed to have been duly given when delivered
or mailed by registered or certified mail, return receipt requested, or by facsimile or by
hand delivery, to those listed below at their following respective addresses or at such
other address as each may specify by notice to the others:
| |
To the Company: |
Industrial Minerals, Inc.
Xxx Xxxxxx
Xxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx X0X 0X0 |
| |
To Employee: |
At the address for Employee set forth below |
| (a) |
Waiver. The failure of a party to insist upon strict adherence to any
term of this Agreement on any occasion shall not be considered a waiver thereof
or deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement. |
| (b) |
Interpretation. Section headings are used herein for convenience of
reference only and shall not affect the meaning of any provision of this
Agreement. Whenever the context so requires, the use of the singular shall be
deemed to include the plural and vice versa. |
| (c) |
Counterparts. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, and
such counterparts will together constitute but one Agreement. |
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day
and year first above written.
|
|
Mr. Xxxx Xxxxxx as EMPLOYEE:
/s/ Xxxx Xxxxxx
Xxxx Xxxxxx
(Signature)
Address: 0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxxx, XX X0X 0X0
|
INDUSTRIAL MINERALS, INC.
By:
/s/ Xxxx xxx Xxxx
(Signature)
Name: Xxxx xxx Xxxx
Title: President
|
300642.1
