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EXHIBIT 10.21
EMPLOYEE RELEASE AND SETTLEMENT AGREEMENT
The parties to this Agreement are USMX, Inc., a Delaware corporation
("USMX"), and Xxxxxx X. Xxxxxx ("Bellum"). This document describes the
agreements of USMX and Bellum concerning Bellum's 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 Bellum.
1. Termination of Relationships: USMX and Bellum have agreed upon
Bellum's resignation from his positions as President and Chief Executive
Officer, Chairman of the Board of Directors and Director of USMX and each 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 Bellum $100,900 payable in equal
installments of $8,408.33 each, with the first installment due on April 15,
1997, and thereafter installment payments shall be made in accordance with
USMX's regular payroll practices, with the final installment due on September
30, 1997. Provided, that, in the event that the proposed merger of USMX with
Dakota Mining Corporation ("Dakota") is completed prior to September 30, 1997,
then the balance of payments due shall be paid to Bellum in one single payment
upon effectiveness of the merger. All payments shall include deductions for
standard withholding and authorized deductions. Bellum agrees that he shall be
exclusively responsible for payment of all taxes received by him pursuant to
this Agreement.
(b) Bellum agrees that all options held by him to acquire shares of stock
of USMX are terminated, effective March 31, 1997.
(c) Bellum 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 Bellum: Bellum 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 Bellum with USMX, including his positions with the
Board of Directors of USMX and 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 of USMX to act in good faith and deal fairly;
(e) injuries, illness or disabilities of Bellum;
(f) exposure of Bellum to toxic or hazardous materials;
(g) stress, anxiety or mental anguish;
(h) sexual harassment;
(i) statements regarding Bellum;
(j) an express or implied employment contract, change in control contract
or other agreement except for a breach of this Agreement;
(k) compensation or reimbursement of Bellum;
(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 Bellum include claims:
(a) arising before the date of this Agreement;
(b) arising on or after the date of this Agreement that relate to Bellum's
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: Bellum does not release or waive Bellum's right to
recover under health, life or disability policies insuring Bellum, and
does not release or waive Claims for worker's compensation benefits.
Bellum has requested that, until further notice by him, 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 Bellum: Bellum waives any right to file suit
for any Claim. Bellum will not xxx any of the USMX Companies for any
Claim. Bellum 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. Bellum does not waive Claims for
breach of this Agreement.
7. Agreement Not to Xxx of USMX: USMX waives any right to file suit for
any Claim. USMX will not xxx Xxxxxx for any Claim. USMX will not
initiate or proceed with any other action or proceeding against Bellum
that relates that something that could give rise to a Claim. USMX does
not waive Claims for breach of this Agreement.
8. Termination of Relationships: Bellum 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 Bellum 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.
9. No USMX or Bellum Admission: Neither USMX or Bellum admit any
wrongdoing or liability. USMX and Bellum have executed this Agreement
solely to avoid any misunderstandings that could lead to potential
litigation. The payments and other arrangements described above
compromise and settle any Claims of USMX and Bellum.
10. News Release By USMX: Promptly after Bellum's execution of this
Agreement, USMX shall issue a news release announcing the resignation
of Bellum. The news release shall state that Xx. Xxxxxx resigned to
return to his consulting practice as a result of the proposed merger
of USMX with Dakota. The news release will note that Dakota has filed
a registration statement with the Securities and Exchange Commission
in connection with the merger, which has not yet become effective.
11. Revocability: Either Bellum or USMX may revoke this Agreement in its
entirety during the seven days following execution of the Agreement by
USMX and Bellum. Any revocation of the Agreement must be in writing
during the revocation period. This Agreement will become enforceable
seven days following execution by USMX and Bellum, unless it is
revoked during the seven-day period.
12. Confidences: Bellum will maintain the confidentiality of all of the
USMX Companies' trade secrets, proprietary information, insider
information, security procedures and other confidences that came into
Bellum's possession or knowledge during employment by USMX. USMX will
not use such information concerning the USMX Companies' business
prospects or practices to profit Bellum or others.
13. Property: Bellum represents that Bellum possesses no property of the
USMX Companies with the exception of a Buick automobile. Bellum will
return the Buick automobile to the USMX premises by no later than
April 30, 1997. However, Bellum will have the right to acquire the
Buick automobile at a price of $14,500 by notifying USMX of his intent
to purchase the Buick by April 30, 1997. Title will be transferred to
Bellum on or before May 15, 1997, and Bellum shall concurrently
deliver a promissory note to USMX in the amount of $14,500. The
promissory note shall be unsecured, without interest, and shall be due
and payable on or before the earlier to occur of August 29, 1997 or
the effectiveness of the merger. If not paid when due, payments due to
Bellum pursuant to Section 2(a) shall be offset by USMX in
satisfaction of the amounts owed pursuant to the promissory note.
14. References: The USMX Companies will respond to inquiries from third
parties about Bellum's employment with USMX by identifying Bellum's
date of hire, date of resignation and position held at the time of
resignation. USMX will provide no further information to prospective
employers of Bellum.
15. Entire Agreement; Amendments: This is the entire agreement concerning
the termination of Bellum's employment with USMX. Neither USMX or
Bellum is entitled to rely upon any other written or oral offer or
agreement between USMX and Bellum. This Agreement can be modified only
by a document signed by both parties. Bellum acknowledges that the
only promises made to cause Bellum to sign this Agreement are those
stated in this Agreement.
16. Successors: This Agreement benefits and binds the parties' successors.
17. 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.
18. Fees and Costs: If litigation is commenced concerning Bellum's
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.
19. 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.
20. Bellum Acknowledgements. Bellum understands that this Agreement is a
final and binding waiver of any claims by Bellum against USMX and by
USMX against Bellum. Bellum 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. Bellum acknowledges that Bellum has
been told by USMX to consult with an attorney prior to signing this
Agreement. Bellum represents that this Agreement has been fully
explained by Bellum's attorneys, or that Bellum has waived
consultation with an attorney.
USMX, INC.
/s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxxx Xxxxx
XXXXXX X. XXXXXX
Date: April 9, 1997 Date: April 9, 1997
