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Exhibit 99
EMPLOYMENT
AGREEMENT
AGREEMENT
made as of the 8th day of August, 2007 by and between, Atlas
Mining Company, an Idaho corporation with its principal
offices at 630 W. Mullan Ave., Osburn, Idaho
83849, (the "Company"), and John S. Gaensbauer,
whose address is 1140 Monaco Parkway, Denver, Colorado, 80220,
(the "Executive").
W
I T N E S E T H:
WHEREAS,
the Company desires to obtain the benefit of the services of
Executive, and Executive desires to render such services, on
the terms and conditions hereinafter set forth:
NOW,
THEREFORE, the parties hereto, in consideration of the
premises and mutual covenants herein contained, hereby agree
as follows:
Upon
the execution of this Agreement, all prior employment
agreements, whether written or oral, between Executive and the
Company are terminated and have no further force or
effect.
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1.
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Subject
to the terms and conditions hereinafter set forth, the Company
hereby employs the Executive, and the Executive hereby agrees to
and enters into the employ of the Company, or of any parent,
subsidiary, or affiliate of the Company as the Company shall from
time to time select, for an employment term commencing as of the
8th day of July, 2007 and continuing for a period of three (3)
years from such date (the "Term of Employment"). At the
end of the Term of Employment, this Agreement shall automatically
be renewed for additional one-year periods (“Extended Term of
Employment”), unless either party provides at least 120 days
written notice of its decision to terminate this
Agreement.
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2.
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During
the Term of Employment, the Executive shall devote such time,
effort and attention to the business and affairs of the Company as
Vice President, Corporate Development and Strategy, and Corporate
Secretary as the Executive and the Board of Directors shall
mutually agree.
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3.
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For
all services to be rendered by the Executive in any capacity during
the Term of Employment and any Extended Term of Employment,
including, without limitation, services as an executive, officer,
director or member of a committee of the Company or its
subsidiaries, divisions, and affiliates, the Executive shall be
paid an annual base salary of two hundred thousand and no /100
dollars ($200,000.00).
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(a). Such
salary will be earned and paid in regular installments in
accordance with the Company’s usual payment practices,
but not less frequently than semi-monthly. Such
payments will be subject to such deductions by the Company as
the Company is from time to time required to make pursuant to
law, government regulations, or order, or by agreement with or
consent of Executive. The Company’s Board of
Directors shall review Executive’s annual base salary at
least annually and may increase (but not decrease) the
Executive’s annual base salary in its sole
discretion. Once increased, such base salary shall
not be decreased, and shall thereafter be treated as his base
salary hereunder.
(b). Executive
and his family members shall be entitled to participate in all
group life insurance, medical and hospitalization plans and
pension and profit sharing plans as are presently offered by
the Company or which may hereafter during the Term of
Employment be offered by the Company generally to its
operating executives.
(c). Executive
shall be entitled to work from Denver, Colorado and maintain
residence in Denver, Colorado or such other location of his
choosing. The Company shall reimburse Executive for
all reasonable costs and expenses to travel to the
Company’s headquarters or other locations for business
purposes.
(d). Executive
shall be entitled to vacation in accordance with Company
policy for executive employees.
(e). Executive
shall be eligible to receive an annual bonus of up to 50% of
Executive’s base salary.
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4.
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In
addition to the foregoing salary, the Company hereby grants the
Executive:
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4.1
an option to purchase up to 1,250,000 shares of the
Company’s common stock at an option exercise price equal
to the closing price of the Company’s common stock on
the date of this Agreement (August 8, 2007), and may be
exercised as follows:
(a) 500,000
shares shall vest and become exercisable as of August 8,
2007;
(b) 500,000
shares shall vest and become exercisable on August 8, 2008,
and;
(c) 250,000
shares shall vest and become exercisable on August 8,
2009.
The
Board may elect to include these options into a formal option
plan in the future.
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4.2
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a
stock award of 250,000 shares of Company common stock (the
“Shares”) subject to the following
restrictions:
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(a)
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100,000
of the Shares shall vest on August 8, 2007 and be subject to no
restrictions;
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(b)
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100,000
of the Shares shall vest on August 8, 2008; and
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(c)
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50,000
of the Shares shall vest on August 8, 2009.
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As soon as reasonably practicable after the Shares become vested as
described above, the Company shall register Executive as the owner
of the Shares and subject to applicable withholding of taxes,
deliver one or more unlegended, freely-transferable stock
certificates in respect of the Shares .
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5.
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The
Executive shall be entitled to reimbursement by the Company for
reasonable expenses actually incurred by him on its behalf in the
course of his employment by the Company, upon the presentation by
the Executive, from time to time, of an itemized account of such
expenditures, together with said vouchers and other receipts as the
Company may require.
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6.
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The
Company will maintain a key man life insurance policy on the
Executive of which the beneficiary rights will be to the
Company.
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7.
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The
rights of the Executive or any other person to the payment of
compensation or other benefits under this Agreement shall not be
assigned, transferred, anticipated, conveyed, pledged, or
encumbered except by will or the laws of descent and distribution;
nor shall any such right or interest be in any manner subject to
levy, attachment, execution, garnishment or any other seizure under
legal, equitable, or other process for payment of debts, judgments,
alimony, or separate maintenance, or reached or transferred by
operation of law in the event of bankruptcy, insolvency, or
otherwise.
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8.
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In
the event of theft or fraud against the Company by Executive, the
Board of Directors may at it discretion immediately terminate this
Agreement. In the case of theft or fraud against the
Company by Executive, any and all unexercised stock options and
Shares shall expire upon termination of this Agreement and the
Board of Directors may determine if any severance pay or additional
benefits will be extended to Executive. In the event of
termination of this Agreement for any reason, other than for theft
or fraud against the Company by the Executive, the Executive shall
be entitled to severance compensation and benefits as provided
below.
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a.
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The
Executive shall be entitled to immediate severance compensation
equal to two (2) years of Executive’s base
salary.
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b.
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The
Executive will be eligible to continue to participate in the
employee health insurance plans (to the extent permissible therein)
for a period of two (2) years from the date of termination of this
Agreement. Cost of such participation for the Executive
and eligible dependents shall be born by the
Company. The Executive will have the option to continue
this coverage for an additional six months or as the law will allow
by paying the full monthly premiums.
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c.
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The
Company shall vest all unvested equity, meaning Shares or other
restricted stock, restricted stock units, stock options or other
equity. The Executive shall have the right to exercise
any stock warrants or options granted prior to termination of this
Agreement for a period of 24 months from the date of termination of
this Agreement.
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The
Company shall tender all payments in lump sum and vest all equity
as stated in this section within 15 days of the date of termination
of this Agreement.
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9.
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Automatically,
upon a Change of Control the Company shall pay to Executive two (2)
times Executive’s annual base salary. The Company
shall also automatically vest any and all unvested equity, meaning
Shares or other restricted stock, restricted stock units, stock
options or other equity. Executive shall have 24 months from
the date of the Change of Control to exercise any stock
options. The Company shall tender all payments in lump
sum and vest all equity as stated in this paragraph within 15 days
of the closing date of the Change of Control.
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“Change
of Control” shall mean:
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(i)
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the
acquisition by any individual, entity or group (within the meaning
of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934, as amended (the “Exchange Act”)) (a
“Person”) of beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the Exchange Act) of 50% or more of
either (a) the then-outstanding shares of common stock of Atlas
Mining Company (the “Outstanding Company Common Stock”)
or (b) the combined voting power of the then-outstanding voting
securities of Atlas Mining Company entitled to vote generally in
the election of directors (the “Outstanding Company Voting
Securities”); provided, however, that, for purposes of this
Section (I)(A), the following acquisitions shall not constitute a
Change of Control: (w) any acquisition directly from Atlas
Mining
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