Form 8-K
8-K — INTERNATIONAL TOWER HILL MINES LTD
Accession: 0001104659-26-089254
Filed: 2026-07-31
Period: 2026-07-27
CIK: 0001134115
SIC: 1000 (METAL MINING)
Item: Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers: Compensatory Arrangements of Certain Officers
Item: Financial Statements and Exhibits
Documents
8-K — tm2621754d1_8k.htm (Primary)
EX-10.1 — EXHIBIT 10.1 (tm2621754d1_ex10-1.htm)
EX-10.2 — EXHIBIT 10.2 (tm2621754d1_ex10-2.htm)
XML — IDEA: XBRL DOCUMENT (R1.htm)
8-K — FORM 8-K
8-K (Primary)
Filename: tm2621754d1_8k.htm · Sequence: 1
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0001134115
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2026-07-27
2026-07-27
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UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON,
DC 20549
FORM 8-K
CURRENT
REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date
of report (Date of earliest event reported): July 27, 2026
INTERNATIONAL
TOWER HILL MINES LTD.
(Exact
Name of Registrant as Specified in Charter)
British
Columbia, Canada
001-33638
98-0668474
(State
or Other Jurisdiction
(Commission
(IRS
Employer
of
Incorporation)
File
Number)
Identification
No.)
1570-200 Burrard Street
Vancouver,
British Columbia, Canada
V6C 3L6
(Address
of Principal Executive Offices)
(Zip
Code)
Registrant’s
telephone number, including area code: (604) 683-6332
(Former
Name or Former Address, if Changed Since Last Report.)
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under
any of the following provisions (see General Instruction A.2. below):
¨ Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨ Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨ Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨ Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities
registered pursuant to Section 12(b) of the Act:
Title
of each class:
Trading
Symbol:
Name
of each exchange on which
registered:
Common
Shares, no par value
THM
NYSE American
Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405
of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).
Emerging
growth company ¨
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Item 5.02 Departure of Directors or Certain Officers;
Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
On July 27, 2026, International Tower Hill Mines
Ltd. (the “Company”) announced the appointments of David Wiens as Chief Executive Officer, effective August 17, 2026 (the
“Wiens Start Date”), and Shane Parrow as President and Chief Operating Officer, effective July 27, 2026 (the “Parrow
Start Date”). Mr. Wiens and Mr. Parrow were also elected to the Company’s Board of Directors (“Board”), each effective
as of the applicable start date. Mr. Wiens will succeed Karl Hanneman, who will transition from his role as Chief Executive Officer and
remain with the Company as Strategic Advisor. Mr. Hanneman will also remain on the Board.
Appointment of David Wiens
David Wiens, age 46, previously served as Chief
Financial Officer of Asante Gold Corporation (“Asante”) from August 2023 to the present. At Asante, Mr. Wiens led complex
financing and recapitalization initiatives totaling more than $1 billion and helped advance the company toward mid-tier gold producer
status. Prior to working for Asante, he was the Chief Financial Officer and Corporate Secretary for Bunker Hill Mining Corp. from January
2021 through August 2023 and, prior to that, Mr. Wiens held senior executive and investment banking roles at several financial institutions, including Deutsche Bank.
In connection with Mr. Wiens’ appointment
as Chief Executive Officer, the Company entered into an employment agreement with Mr. Wiens (the “Wiens Employment Agreement”)
pursuant to which Mr. Wiens’ annual base salary will be $450,000 and he will be eligible for a target annual cash bonus in an amount
equal to 75% of his base salary, pro-rated for the 2026 calendar year, calculated from the Wiens Start Date. Commencing in 2027, Mr. Wiens
also will be eligible to receive an annual equity award under the Company’s 2006 Incentive Stock Plan in an amount targeted at 150%
of Mr. Wiens’ base salary, subject to criteria determined by the Board or the Compensation Committee of the Board.
In accordance with the Wiens Employment Agreement,
the independent members of the Board approved the grant to Mr. Wiens, effective as of the Wiens Start Date, of a new hire equity award
(the “Wiens Equity Award”) of time-based restricted stock units (“RSUs”) with an aggregate grant date value of
$1,650,000 that will vest in three equal annual installments beginning on the first anniversary of the Wiens Start Date, subject to his
continued service with the Company on each vesting date. The Wiens Equity Award was issued pursuant to the employment inducement award
exemption to the stockholder approval requirements under the rules of the NYSE American (the “NYSE American inducement award exemption”)
and the Toronto Stock Exchange (the “TSX inducement award exemption”).
The Wiens Employment Agreement generally
provides the following severance benefits upon certain qualifying terminations of employment (including termination without
Cause or with Good Reason, as defined in the Wiens Employment Agreement): cash severance equal to one year’s base
salary and one year’s target annual performance bonus determined at 100%, plus the prorated portion of his annual performance bonus
determined at 100%. In addition, the unvested portion of the Wiens Equity Award will automatically vest and a prorated portion of any
other equity compensation awards will vest, provided that any performance-based awards will vest based on prorated performance targets.
Severance in all circumstances includes continuation of health insurance coverage for up to one year.
If Mr. Wiens is terminated without Cause or resigns
within six months of a change in control (as defined in the Wiens Employment Agreement), severance benefits will include cash severance
equal to two years’ base salary and two year’s target annual performance bonus determined at 100%, plus the prorated portion
of his annual performance bonus determined at 100%. In addition, the unvested portion of the Wiens Equity Award will automatically vest
and 100% of any other equity compensation awards will vest, provided that any performance-based awards will vest based on prorated performance
targets.
In the event of termination because Mr. Wiens
is not able to obtain U.S. immigration permission to work in Fairbanks, Alaska by March 31, 2028, severance benefits will include cash
severance equal to 50% of the sum of (i) one year’s base salary, (ii) one year’s annual performance bonus determined at 100%,
plus (iii) the prorated portion of his annual performance bonus determined at 100%. In addition, the unvested portion of the Wiens Equity
Award will automatically vest and a prorated portion of any other equity compensation awards will vest, provided that any performance-based
awards will vest on a pro-rated basis.
Following his relocation to Fairbanks, Alaska,
Mr. Wiens will be eligible to participate in the Company’s employee benefit plans (including certain retirement and health and welfare
benefit plans) on terms substantially similar to those that apply for other executive officers of the Company from time to time. Prior
to such relocation, the Company will provide a stipend in lieu of health and retirement-related benefits. Mr. Wiens will also be entitled
to a relocation allowance and temporary housing benefits in amounts determined by the Board upon his relocation to Fairbanks, Alaska.
Benefits under the Wiens Employment Agreement
are generally subject to Mr. Wien’s compliance with customary restrictive covenants, including a one-year non-compete and non-solicitation
requirement. Payment of severance is subject to execution of a general release of claims.
Mr. Wiens’ appointment as Chief Executive
Officer was not pursuant to any arrangement or understanding between Mr. Wiens and any other person. There is no family relationship between
Mr. Wiens and any director or executive officer of the Company, and there are no transactions involving Mr. Wiens requiring disclosure
under Item 404(a) of Regulation S-K.
The foregoing description of the Wiens Employment
Agreement is qualified in its entirety by reference to the full text of the Wiens Employment Agreement, the form of which is filed as
Exhibit 10.1 and is incorporated by reference in this Current Report on Form 8-K.
Appointment of Shane Parrow
Shane Parrow, age 51, previously served from
January 2026 through June 2026 as Vice President & General Manager of Kinross Gold Corporation (“Kinross”),
overseeing the Fort Knox and Manh Choh operations. Prior to that, he served as Vice President & Deputy General Manager of
Kinross from March 2025 through January 2026 and as Operations Director for Kinross on the Manh Choh project from October 2022
through March 2025. Prior to his employment at Kinross, Mr. Parrow served as General Manager of Florida Canyon Mining, Inc. from
August, 2021 through September 2022 and as Mine Support Manager of Sibanye-Stillwater from October 2019 through August 2021.
In connection with Mr. Parrow’s appointment
as President and Chief Operating Officer, Tower Hill Mines (US) LLC, an indirect wholly owned subsidiary of the Company, entered into
an employment agreement with Mr. Parrow (the “Parrow Employment Agreement”) pursuant to which Mr. Parrow’s annual base
salary will be $400,000 and he will be eligible for a target annual bonus in an amount equal to 50% of his base salary, pro-rated for
the 2026 calendar year, calculated from the Parrow Start Date. Commencing in 2027, Mr. Parrow will also be eligible to receive an annual
equity award under the Company’s 2006 Incentive Stock Plan in an amount targeted at 60% of Mr. Parrow’s base salary, subject
to criteria determined by the Board or the Compensation Committee of the Board.
In accordance with the Parrow Employment Agreement,
the independent members of the Board approved the grant to Mr. Parrow, effective as of the Parrow Start Date, of a new hire equity award
(the “Parrow Equity Award”) of 312,500 RSUs with an aggregate grant date value of $650,000 that will vest in three equal annual
installments beginning on the first anniversary of the Parrow Start Date, subject to his continued service with the Company on each vesting
date. The RSUs will be subject to the terms and conditions of an Inducement Award Agreement for Restricted Share Units. The Parrow Equity
Award is being issued pursuant to the NYSE American inducement award exemption and the TSX inducement award exemption.
The Parrow Employment Agreement generally
provides the following severance benefits upon certain qualifying terminations of employment (including termination without
Cause or with Good Reason, as defined in the Parrow Employment Agreement): cash severance equal to one year’s base
salary plus the prorated portion of his annual performance bonus determined at 100%. In addition, the unvested portion of the Parrow Equity
Award will automatically vest and a prorated portion of any other equity compensation awards will vest, provided that any performance-based
awards will vest based on prorated performance targets. Severance in all circumstances includes continuation of health insurance coverage
for up to one year.
In the event of termination without Cause or with
Good Reason within six months of a change in control (as defined in the Parrow Employment Agreement), severance benefits will include
cash severance equal to one years’ base salary plus the prorated portion of his annual performance bonus determined at 100%. In
addition, the unvested portion of the Parrow Equity Award will automatically vest and a prorated portion of any other equity compensation
awards will vest, provided that any performance-based awards will vest based on prorated performance targets.
Mr. Parrow will also be eligible to participate
in the Company’s employee benefit plans (including certain retirement and health and welfare benefit plans) on terms substantially
similar to those that apply for other executive officers of the Company from time to time.
Benefits under the Parrow Employment Agreement
are generally subject to Mr. Parrow’s compliance with customary restrictive covenants, including a one-year non-compete and non-solicitation
requirement. Payment of severance is subject to execution of a general release of claims.
Mr. Parrow’s appointment as President and
Chief Operating Officer was not pursuant to any arrangement or understanding between Mr. Parrow and any other person. There is no family
relationship between Mr. Parrow and any director or executive officer of the Company, and there are no transactions involving Mr. Parrow
requiring disclosure under Item 404(a) of Regulation S-K.
The foregoing description of the Parrow Employment
Agreement is qualified in its entirety by reference to the full text of the Parrow Employment Agreement, a copy of which is filed as Exhibit
10.2 and is incorporated by reference in this Current Report on Form 8-K.
Appointment of New Directors
On July 27, 2026, the Board expanded the size
of the Board from seven directors to nine directors and appointed Shane Parrow, effective as of the Parrow Start Date, and David Wiens,
effective as of the Wiens Start Date, to fill the vacancies created by the expansion. The term for each will expire at the annual meeting
of shareholders in 2027 and until his successor is elected and qualified, or until his earlier death, resignation, retirement, disqualification
or removal. Neither Mr. Wiens nor Mr. Parrow will serve on any committees of the Board nor receive additional compensation for his service
on the Board.
As noted above, there are no transactions involving
Mr. Wiens or Mr. Parrow requiring disclosure under Item 404(a) of Regulation S-K. There are no arrangements or understandings between
Mr. Wiens or Mr. Parrow and any other persons pursuant to which Mr. Wiens or Mr. Parrow was elected as a director.
Item 9.01 Financial Statements and Exhibits
(d) Exhibits
Exhibit No. Description
10.1 Wiens Employment Agreement, dated as of July 27, 2026, between International Tower Hill Mines Ltd. and David Wiens
10.2 Parrow Employment Agreement, dated as of July 27, 2026, between International Tower Hill Mines (US) LLC and Shane Parrow
104 Cover Page Interactive Data File (embedded within the Inline XBRL document)
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
International Tower Hill Mines Ltd.
(Registrant)
Dated: July 31, 2026
By:
/s/ Karl Hanneman
Name:
Karl Hanneman
Title:
President and Chief Executive Officer
EX-10.1 — EXHIBIT 10.1
EX-10.1
Filename: tm2621754d1_ex10-1.htm · Sequence: 2
Exhibit 10.1
EMPLOYMENT AGREEMENT
This Employment
Agreement (“Agreement”) is made and entered into by and between International Tower Hill Mines Ltd. (“ITH”
or the “Company”) and David Wiens (hereafter, the “Executive”) and is effective as of July 27,
2026 (the “Effective Date”). The Company and the Executive shall be collectively referred to as the “Parties”
and individually as a “Party”. The Company collectively with its affiliates will be referred to as the “ITH
Group”.
1. Term.
(a) The term of this Agreement (the “Term”)
commences on the Effective Date of this Agreement and ends at the close of business on the
date that this Agreement and the Executive’s employment is terminated (the “Termination
Date”). The Executive’s actual employment start date shall be August 17,
2026 or such other date as may be mutually agreed between the Company and the Executive (the
“Start Date”).
(b) Notwithstanding any other provision of
this Agreement, this Agreement may be terminated at any time during the Term in accordance
with Section 6.
2. Position.
(a) As
of the Start Date, and thereafter during the Term, ITH shall be the Executive’s
employer and the Executive shall serve as ITH’s Chief Executive Officer (“CEO”).
The Executive shall also hold all other positions with the Company and its affiliates as
deemed necessary by the Board of Directors of ITH (the “Board”). The parties
understand and agree that the Executive’s employment with ITH is expected to transition
to Tower Hill Mines (US) LLC, an indirect wholly owned subsidiary of ITH, if and when Executive
is successful in obtaining a visa for such employment. Upon such transition, it is the Parties’
intention to transfer all rights and obligations of “the Company” as that term
is used herein to Tower Hill Mines (US) LLC subject to agreement between that entity and
Executive, substantially on the same terms as set out in this Agreement (for certainty, including
that the Executive would continue to act as CEO of ITH), with any equity and incentive awards
being unaffected by such change in the Executive’s employer. On the Termination Date,
the Executive shall resign and be deemed to have resigned from all positions held with any
member of the ITH Group. Each of the Parties acknowledges and agrees that the Company’s
obligations to the Executive shall not be affected by the terms of this Section 2(a) and
the description of the Parties’ future intentions is for informational purposes only.
3. Duties and Responsibilities of the Executive.
(a) As of the Start Date, and thereafter during
the Term, and except as set forth below, the Executive shall devote his full time and attention
during normal business hours to the business of the Company and will perform with due care
his duties and responsibilities.
(b) The Executive’s duties will include
those normally incidental to the position of chief executive officer (including the duties
set forth in Exhibit A), as well as such additional duties consistent therewith as may
be assigned to him by the Board. If, in its sole and complete discretion, the Board changes
the Executive’s title and/or the Executive’s reporting responsibilities, such
changes shall thereafter apply for purposes of this Agreement, subject only to the provisions
of Section 7(c).
- 2 -
(c) Each of the Parties acknowledges and agrees
that the Executive will relocate to Fairbanks, Alaska as soon as reasonably practical after
the Executive has obtained a visa pursuant to which the Executive may reside and work in
the United States pursuant to and in accordance with this Agreement. Unless the Executive
has already obtained an H-1B Visa pursuant to which the Executive may reside and work in
the United States pursuant to and in accordance with this Agreement, the Company will pay
(or reimburse the Executive) for all costs and fees incurred in connection with obtaining
an L1 Visa pursuant to which the Executive may reside and work in the United States pursuant
to and in accordance with this Agreement, including reasonable legal or immigration consultant
costs, and any government application and processing fees, and the Company will provide all
reasonable assistance and cooperation required by the Executive in applying for and obtaining
the L1 Visa. Prior to the Executive’s relocation to Fairbanks, Alaska, the Executive’s
location of employment will primarily be Barbados. During such time, the Executive will not
perform work inside the United States. Any visits to the United States during such time will
be limited only to short business trips for the purposes of activities consistent with those
permitted under a B-1 visa, including attending business meetings.
Following the Executive’s relocation
to Fairbanks, Alaska as contemplated by this Agreement, the Executive’s location of employment will primarily be Fairbanks, Alaska.
Subject to compliance with applicable customs and immigration laws, the Executive will be expected to travel as and when necessary, to
such locations and for such period(s) of time, as may be required to properly perform his duties. The Executive will work on a 5
days on, 2 days off schedule, with travel as required.
(d) The Executive agrees to cooperate fully
with the Board and not engage directly or indirectly in any activity that materially interferes
with the performance of the Executive’s duties hereunder. During the Term, it shall
not be a violation of this Agreement for the Executive to:
(i) serve on any corporate, civic, or charitable
boards or committees (except for boards or committees of any business organization that competes
with the Company or its affiliates, including ITH, in any business in which they are regularly
engaged), so long as such service does not materially interfere with the performance of the
Executive's duties and responsibilities under this Agreement, as the Board in its reasonable
discretion shall determine,
(ii) manage personal investments, or
(iii) take up to 30 days of vacation annually,
at times to be mutually agreed between the Executive and the Board and reasonable absences
due to injury or illness as permitted by the general policies of the Company. Any unused
vacation days will either be carried over to the following year, or will be paid out at the
request of the Executive.
- 3 -
(e) The Executive represents and covenants
to the Company that he is not subject or a party to any employment agreement, non-competition
covenant, non-solicitation agreement, nondisclosure agreement, or any other agreement, covenant,
understanding, or restriction that would prohibit the Executive from executing this Agreement
and fully performing his duties and responsibilities hereunder.
(f) The Executive acknowledges and agrees
that the Executive owes the Company and its affiliates, including each member of the ITH
Group, a duty of loyalty and that any obligations described in this Agreement are in addition
to, and not in lieu of, any obligations the Executive owes the Company and its affiliates
as a matter of law.
(g) During the Term, the Executive shall provide
written notice to the Board of outside employment or performance of substantial personal
services for parties unrelated to the ITH Group. For the avoidance of doubt, any such outside
employment or performance of substantial personal services for parties unrelated to the ITH
Group is subject to the provisions of Section 11 hereof.
(h) The
Executive agrees to abide by all applicable ITH Group policies and procedures as may be in
effect from time to time, including but not limited to its employment policies. The Livengood
Gold Project, including all work and camp areas, is subject to a zero-tolerance drug and
alcohol policy. The ITH Group has also adopted and implemented a Site-Specific Safety and
Health Plan. The Executive will be expected to become fully familiar and comply with the
provisions of this plan. Failure to comply with these policies could result in disciplinary
action, up to and including discharge for “Cause” on and subject
to the terms and conditions of this Agreement.
4. Compensation.
(a) Base
Salary. Commencing on the Start Date and thereafter during the Term, the Company shall
pay to the Executive an annual base salary of $450,000 (the “Base Salary”),
payable bi-weekly in conformity with the ITH Group’s customary payroll practices. During
the Term, the Compensation Committee of the Board (“Compensation Committee”)
will review and determine increases to the Executive’s salary from time to time after
the Start Date, at its sole discretion.
(b) Annual
Performance Bonus. The Executive shall be eligible for an annual discretionary performance
bonus with respect to each full calendar year during the Term (the “Annual
Performance Bonus”), beginning with the calendar year 2026, which shall, if earned,
consist of a cash payment targeted at 75% of the Base Salary. The Compensation Committee
shall, on an annual basis (at or near the beginning of each full calendar year during the
Term), establish performance objectives for the Executive for the upcoming year (the “Performance
Period”), such objectives to be consistent with the Executive’s duties set
out in this Agreement, and will communicate such objectives to the Executive prior to the
start of the applicable Performance Period. For calendar year 2026, the performance objectives
shall be established after the Start Date and the target bonus shall be pro-rated based on
the percentage of the calendar year completed. The amount, if any, of the Annual Performance
Bonus to be paid will be determined by the independent members of the Board, or the Compensation
Committee if designated this task by the Board, in each case acting in its sole and reasonable
discretion based on an evaluation of the achievement of the annual performance objectives.
The bonus determination will be made as soon as administratively practicable after the end
the Performance Period, but in no event will an Annual Performance Bonus be paid later than
March 15th of the calendar year following the end of the Performance Period.
The Executive must be employed by the Company at the time of payment of the Annual Performance
Bonus in order to earn and be entitled to payment of the Annual Performance Bonus, except
as provided in Sections 7(a), 7(b), 7(c) and 7(d).
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(c) Initial
Equity Awards. Within 30 days of the Start Date, as approved by the Board and the Compensation
Committee, in recognition of the appointment of the Executive to the position of CEO, the
Executive will, subject to receipt of any required stock exchange approvals, receive a grant
of $1,645,000 of restricted share units (the “Equity Inducement RSUs”)
pursuant to the terms of the Inducement Equity Award Agreement attached hereto as Exhibit B
(the “2026 RSU Agreement”), with per share pricing and the number of shares
to be determined with reference to the weighted average of the prices at which the common
shares of ITH traded on the NYSE-American for the five trading days immediately preceding
the date of the grant. ITH shall file a Form S-8 to register all common shares to be
granted pursuant to the 2026 RSU Agreement prior to the earliest vesting date of any such
shares.
(d) Long
Term Incentive Awards. The Executive will be eligible to receive, subject to approval
by the Board or the Compensation Committee, as applicable, annual incentive equity awards
targeted at 150% of the Base Salary subject to the terms and conditions of the 2006 Incentive
Stock Plan of ITH or such other equity plan approved by the stockholders of ITH (the “LTIP”).
Such annual incentive equity awards may be paid in the form of incentive stock options, deferred
share units, restricted share units or performance share units, and shall vest annually over
a four year period commencing on the first anniversary of the grant date, or as otherwise
determined by the Compensation Committee or the Board, as applicable, in its sole discretion.
(e) Board Participation. The Executive
will be appointed to serve on the Board of ITH during the Term, provided that the Executive
shall not be entitled to additional compensation for such Board service.
5. Benefits. Subject to the terms and conditions
of this Agreement, the Executive shall be entitled to the following benefits during the Term:
(a) Reimbursement of Business Expenses
and Travel. The Company agrees to promptly reimburse the Executive for reasonable business-related
expenses, including travel expenses, incurred in the performance of the Executive’s
duties under this Agreement in accordance with Company policies. The Executive understands
and agrees that his position may entail frequent and significant travel to places outside
of Alaska.
- 5 -
(b) Relocation and Temporary Housing Allowance.
Upon the Executive’s relocation to Fairbanks, Alaska, the Company agrees to provide
relocation allowance and temporary housing benefits in amounts to be determined at the discretion
of the Board, acting reasonably.
(c) Benefit Plans and Programs. Following
the Executive’s relocation to Fairbanks, Alaska in accordance with Section 3(c),
to the extent permitted by applicable law, the Executive (and where applicable, his plan-eligible
dependents) shall be eligible to participate in all benefit plans and programs, including
improvements or modifications of the same, then being actively maintained by the Company
for the benefit of its executive employees (or for an employee population which includes
its executive employees), subject in any event to the eligibility requirements and other
terms and conditions of those plans and programs, including, without limitation:
(i) Medical insurance - Company subsidizes premiums
for Premera Blue Cross Blue Shield of Alaska.
(ii) Health reimbursement arrangement (HRA)
- Premera-covered out-of-pocket amounts are reimbursed to the employee up to the current
annual policy period out-of-pocket maximum ($8,400 individual/$16,800 family). Company pays
100% of all qualified HRA reimbursements to the Plan Administrator, Rocky Mountain Reserve,
who provides reimbursement to the employee.
(iii) 401(k) plan - Sentinel Benefits administers
the current plan that offers both pre-tax (401k) and post-tax (Roth) deferrals. A Safe Harbor
Match is paid annually during first quarter for the prior year based on 3% of eligible gross
salary up to federal maximum (currently $360,000). Salary exclusions include stock option
exercises and severance
(iv) Dental insurance, life insurance and disability
insurance - Company pays 100% of Guardian coverage for dental, vision, life (up to $100,000,
age-dependent), and short-term disability (limited coverage). Out-of-pocket costs under the
Guardian policy for dental and vision are not eligible for reimbursement under the HRA.
The Company shall not, however, by reason
of this Section 5(c), have any obligation to institute, maintain, or refrain from changing, amending, or discontinuing any such
benefit plan or program.
Prior to the Executive’s relocation
to Fairbanks, Alaska in accordance with Section 3(c), the Company shall provide the Executive with a stipend of $4,166.67 per month
in lieu of health and retirement related benefits, payable monthly at the end of each month of service.
- 6 -
6. Termination of Agreement and Employment.
(a) Automatic Termination in the Event
of Death. This Agreement shall automatically terminate in the event of the Executive’s
death. In the event of the Executive’s death, the Company shall pay to the Executive’s
estate, a portion of the Annual Performance Bonus, pro-rated based on the percent completion
of the calendar year, at the target level.
(b) Company's Right to Terminate. At
any time after the Effective Date, the Company shall have the right to terminate this Agreement
for any of the following reasons:
(i) upon the Executive's Disability (as defined
below),
(ii) for Cause (as defined in Section 7);
(iii) if the Executive has not obtained U.S.
immigration permission to work in Fairbanks, Alaska pursuant to and in accordance with the
terms of this Agreement by March 31, 2028 (the “Outside Date”), provided
however that (A) the Outside Date shall be extended by a corresponding number of days
if and to the extent that the Executive is required to spend more than 30 days in the United
States following the Effective Date and (B) the right to terminate the Executive’s
employment pursuant to this Section 6(b)(iii) must be exercised within 90 days
following the Outside Date; and
(iv) for any other reason whatsoever, in the
sole and complete discretion of the Company.
(c) Executive’s Right to Terminate.
At any time after the Effective Date, the Executive will have the right to terminate this
Agreement with the Company for:
(i) Good Reason (as defined in Section 7);
or
(ii) for any other reason whatsoever, in the
sole and complete discretion of the Executive; provided that the Executive will provide 60
days advance written notice of his intention to resign.
(d) “Disability”.
For the purposes of this Agreement, “Disability”' means that the Executive
has sustained sickness or injury that renders the Executive incapable, with reasonable accommodation,
of performing the duties and services required of the Executive hereunder for a period of
120 consecutive calendar days or a total of 150 calendar days during any 12-month period;
provided, however, that any termination based on Disability will be made in accordance with
applicable law, including the Americans with Disabilities Act, as amended.
(e) “Notices”.
Any termination of this Agreement by the Company under Section 6(b) or by the Executive
under Section 6(c) shall be communicated by a Notice of Termination to the other
Party. A “Notice of Termination” means a written notice that:
(i) indicates the specific termination provision
in this Agreement relied upon; and
- 7 -
(ii) if the termination is by the Company for
Cause or by the Executive for Good Reason, sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Executive’s employment
under the provision so indicated. The Notice of Termination must specify the Executive's
Termination Date. The Termination Date may be as early as 14 calendar days after such Notice
is given but no later than 60 calendar days after such Notice is given, unless otherwise
agreed to by the Parties in writing or unless the termination is For Cause, in which case
the Termination Date may be immediate.
(f) The termination of this Agreement shall
also result in the contemporaneous termination of the Executive’s employment.
7. Severance Payments.
(a) Termination by the Company pursuant
to Section 6(b)(iii). If the Company terminates this Agreement at any time after
the Effective Date pursuant to Section 6(b)(iii), the Company shall pay to the Executive
in a lump sum, subject to all applicable withholdings, on the 10th day after the
Termination Date, provided that the Executive has timely executed, not revoked, and any period
to revoke has lapsed, in a standard and reasonable form chosen by the Company in its sole
discretion, a full general release of any claims arising from this Agreement and the Executive’s
employment in favor of the Company and its affiliates, a severance payment in an amount equal
to 50% of the sum of:
(i) one year's Base Salary as of the Termination
Date;
(ii) one
year’s maximum Annual Performance Bonus for the Performance Period in which the termination
occurs, determined as if all relevant performance targets established for such year had been
100% attained; and
(iii) the
prorated portion of the maximum Annual Performance Bonus for the Performance Period in which
the termination occurs, determined as if all of the relevant performance targets established
for such year had been 100% attained.
For the
avoidance of doubt, notwithstanding that the Termination Date may precede the date of payment of an Annual Performance Bonus,
the Executive will continue to be entitled to be paid the full amount of any Annual Performance Bonus earned but not yet paid for the
Performance Period immediately preceding the Performance Period in which the termination occurs.
In addition, in a situation entitling
the Executive to a severance payment under this Section 7(a), as at the close of business on the calendar day immediately prior
to the Termination Date, (a) 100% of any unvested Equity Inducement RSUs shall automatically vest and (b) if and to the extent
that the Executive holds any unvested equity-based compensation awards granted pursuant to the LTIP or any other stock option or equity
plans in place at such time (including without limitation any LTIP awards, stock options, restricted stock, restricted stock units, performance
units, and/or performance shares), such unvested equity-based compensation awards shall automatically vest on a prorated basis (calculated
in each case with reference to the number of days from and including the applicable grant date to but excluding the Termination Date);
provided that any performance-based awards will vest based on the degree of achievement of the relevant performance targets established
for such year through to the Termination Date, using pro-rated performance targets where necessary to account for the shortened performance
period.
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(b) Termination by Company without Cause.
If the Company terminates this Agreement at any time after the Effective Date pursuant to
Section 6(b)(i) or 6(b)(iv), then, except as set forth in Section 7(d), the
Company shall pay to the Executive in a lump sum, subject to all applicable withholdings,
on the 10th day after the Termination Date, provided that the Executive has timely
executed, not revoked, and any period to revoke has lapsed, in a standard and reasonable
form chosen by the Company in its sole discretion, a full general release of any claims arising
from this Agreement and Executive’s employment in favor of the Company and its affiliates,
a severance payment equal to the sum of:
(i) one year's Base Salary as of the Termination
Date;
(ii) one
year’s maximum Annual Performance Bonus for the Performance Period in which the termination
occurs, determined as if all relevant performance targets established for such year had been
100% attained; and
(iii) the
prorated portion, of the maximum Annual Performance Bonus for the Performance Period in which
the termination occurs, determined as if all of the relevant performance targets established
for such year had been 100% attained.
For the
avoidance of doubt, notwithstanding that the Termination Date may precede the date of payment of an Annual Performance Bonus,
the Executive will continue to be entitled to be paid the full amount of any Annual Performance Bonus earned but not yet paid for the
Performance Period immediately preceding the Performance Period in which the termination occurs; provided that if the amount of such
Annual Performance Bonus has not been communicated to the Executive by the Termination Date, then it will be deemed to be the maximum
Annual Performance Bonus for such Performance Period, determined as if all relevant performance targets established for such year had
been 100% attained.
In addition, in a situation entitling
the Executive to a severance payment under this Section 7(b), as at the close of business on the calendar day immediately prior
to the Termination Date, (a) 100% of any unvested Equity Inducement RSUs shall automatically vest and (b) if and to the extent
that the Executive holds at such time any unvested equity-based compensation awards granted pursuant to the LTIP or any other stock option
or equity plans in place at such time (including without limitation any LTIP awards, stock options, restricted stock, restricted stock
units, performance units, and/or performance shares), such unvested equity-based compensation awards shall automatically vest on a prorated
basis (calculated in each case with reference to the number of days from and including the applicable grant date to but excluding the
Termination Date); provided that any performance-based awards will vest based on the degree of achievement of the relevant performance
targets established for such year through to the Termination Date, using pro-rated performance targets where necessary to account for
the shortened performance period.
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(c) Termination by Executive for Good Reason.
If the Executive terminates this Agreement at any time after the Effective Date pursuant
to Section 6(c)(i), then except as set forth in Section 7(d), the Company shall
pay to the Executive, in a lump sum, subject to all applicable withholdings, on the 10th
day after the Termination Date, provided that the Executive has timely executed, not revoked,
and any period to revoke has lapsed, in a standard and reasonable form chosen by the Company
in its sole discretion, a full general release of any claims arising from this Agreement
and Executive’s employment in favor of the Company and its affiliates, a severance
payment equal to the sum of:
(i) one year's Base Salary as of the Termination
Date;
(ii) one
year’s maximum Annual Performance Bonus for the Performance Period in which the termination
occurs, determined as if all relevant performance targets established for such year had been
100% attained; and
(iii) the
prorated portion, of the maximum Annual Performance Bonus for the Performance Period in which
the termination occurs, determined as if all of the relevant performance targets established
for such year had been 100% attained.
For the
avoidance of doubt, notwithstanding that the Termination Date may precede the date of payment of an Annual Performance Bonus, the Executive
will continue to be entitled to receive any Annual Performance Bonus earned but not yet paid for the Performance Period immediately preceding
the Performance Period in which the termination occurs.
In addition,
in a situation entitling the Executive to a severance payment under this Section 7(c), as at the close of business on the calendar
day immediately prior to the Termination Date, (a) 100% of any unvested Equity Inducement RSUs shall automatically vest and
(b) if and to the extent that the Executive holds at such time any unvested equity-based compensation awards granted pursuant to
the LTIP or any other stock option or equity plans in place at such time (including without limitation any LTIP awards, stock options,
restricted stock, restricted stock units, performance units, and/or performance shares), such unvested equity-based compensation awards
shall automatically vest on a prorated basis (calculated in each case with reference to the number of days from and including the applicable
grant date to but excluding the Termination Date); provided that any performance-based awards will vest based on the degree of achievement
of the relevant performance targets established for such year through to the Termination Date, using pro-rated performance targets where
necessary to account for the shortened performance period.
- 10 -
(d) Termination
after a Change in Control.
If a Change in Control occurs and within six months of the Change in Control:
(i) the Company terminates this Agreement pursuant
to Section 6(b)(iv); or
(ii) the Executive terminates this Agreement
pursuant to Section 6(c)(i) or 6(c)(ii) hereof,
then Sections 7(b) and 7(c) shall
not apply and the Company shall pay to the Executive in a lump sum, subject to all applicable withholdings, on the 10th day
after the Termination Date, provided that the Executive has timely executed, not revoked, and any period to revoke has lapsed, in a standard
and reasonable form chosen by the Company in its sole discretion, a full general release of any claims arising from this Agreement and
Executive’s employment in favor of the Company and its affiliates, a severance payment equal to the sum of:
(i) two year’s Base Salary as of the Termination
Date;
(ii) two
year’s maximum Annual Performance Bonus for the Performance Period in which the termination
occurs, as if all relevant performance targets established for such year had been 100% attained;
and
(iii) the
prorated portion, of the maximum Annual Performance Bonus for the Performance Period in which
the termination occurs determined as if all of the relevant performance targets established
for such year had been 100% attained.
For the
avoidance of doubt, notwithstanding that the Termination Date may precede the date of payment of an Annual Performance Bonus,
the Executive shall continue to be entitled to receive any Annual Performance Bonus earned but not yet paid for the Performance Period
immediately preceding the Performance Period in which the termination occurs.
In addition, in a situation entitling
the Executive to a severance payment under this Section 7(d), as at the close of business on the calendar day immediately prior
to the Termination Date, (a) 100% of any unvested Equity Inducement RSUs shall automatically vest and (b) if and to the extent
that the Executive holds any unvested equity-based compensation awards granted pursuant to the LTIP or any other stock option or equity
plans in place at such time (including without limitation any LTIP awards, stock options, restricted stock, restricted stock units, performance
units, and/or performance shares), 100% of such unvested equity-based compensation awards shall automatically vest; provided that any
performance-based awards will vest based on the degree of achievement of the relevant performance targets established for such year through
the date of termination, using pro-rated performance targets where necessary to account for the shortened performance period.
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(e) Additional Benefits. If the Company
is required to pay to the Executive severance by, and subject to, Sections 7(a), 7(b), 7(c) or
7(d), or if the Executive is terminated pursuant to Section 6(b)(i), then:
(i) Such severance shall be paid in addition
to any other payments the Company may make to the Executive (including, without limitation,
salary, fringe benefits, and expense reimbursements) in discharge of the Company’s
obligations to the Executive under this Agreement with respect to periods ending coincident
with or prior to the Termination Date.
(ii) Subject to the Executive’s timely
and proper election of COBRA continuation coverage, and subject to the Company being eligible
to provide COBRA continuation coverage, the Company shall reimburse the Executive for COBRA
continuation coverage for twelve full months (or for the lesser duration of such COBRA coverage)
beginning with the month following the month in which the Termination Date occurs, such that
the Executive's cost of such COBRA coverage shall equal the cost, if any, that the Executive
would pay (on behalf of himself and his spouse and dependents, as applicable) under the Company’s
group health plan had the Executive not terminated; provided, that if substantially similar
group health coverage under another group health plan becomes available thereafter at substantially
the same cost to the Executive, the Executive’s spouse, or the Executive’s dependents
(as applicable), the Company’s reimbursement obligations under this Section 7(e)(ii) will
cease with respect to each person to whom such coverage becomes available. The Executive
shall notify the Company immediately upon group health coverage becoming available to the
Executive, the Executive’s spouse, or the Executive’s dependents.
(iii) Payments under Sections 7(a), 7(b), 7(c) or
7(d), or payment under the disability insurance policy pursuant to Section 5(c)(iv),
shall be in lieu of any severance benefits otherwise due to the Executive under any severance
pay plan or program maintained by the Company that covers its employees and/or its executives.
(f) “Cause”
means the occurrence or existence of any of the following events during the Term:
(i) the Executive’s gross negligence or
material mismanagement in performing, or material failure or inability (excluding as a result
of death or Disability) to perform, the Executive’s duties and responsibilities as
described herein or as lawfully and reasonably directed by the Board;
(ii) the Executive having committed any act
of willful misconduct or material dishonesty (including but not limited to theft, misappropriation,
embezzlement, forgery, fraud, falsification of records, or wilful misrepresentation) against
the Company or any of its affiliates, or any such act that results in, or could reasonably
be expected to result in, material and irreparable injury to the reputation, business or
business relationships of the Company or any of its affiliates;
- 12 -
(iii) the
Executive's material breach: (1) of this Agreement (which, if capable of being
remedied, is not remedied within 30 days of written notice of such material breach); (2) of
any fiduciary duty owed by the Executive to the Company or its affiliates; or (3) of
any workplace policies applicable to the Executive (including but not limited to the Company’s
Code of Conduct and policy on workplace harassment as determined after an independent and
impartial investigation) whether adopted on or after the Effective Date of this Agreement
(which, if capable of being remedied, is not remedied within 30 days of written notice of
such material breach);
(iv) the Executive having been convicted of,
or having entered a plea bargain, a plea of nolo contendere or settlement admitting
guilt for, any felony, any crime of moral turpitude, or any other crime that could reasonably
be expected to have a material adverse impact on the Company’s or any of its affiliates’
reputations; or
(v) the Executive having committed any material
violation of any federal law regulating securities (without having relied on the advice of
the Company’s attorney) or having been the subject of any final order, judicial or
administrative, obtained or issued by the Securities and Exchange Commission, for any securities
violation involving fraud, including, for example, any such order consented to by the Executive
in which findings of facts or any legal conclusions establishing liability are neither admitted
nor denied.
(g) “Good
Reason” means the occurrence, prior to the occurrence of any circumstance that
constitutes Cause within the meaning of Section 7(f)(ii) or the Executive receiving
written notice of any other circumstance that constitutes Cause which have not previously
been remedied, of any of the following events during the Term without the Executive's written
consent:
(i) any
material breach by the Company of this Agreement or any reduction in the Executive’s
compensation (it being understood, for the avoidance of doubt, that the failure to earn all
or any portion of an Annual Performance Bonus shall not constitute a reduction in
the Executive’s compensation);
(ii) after the Executive relocates to Fairbanks,
Alaska pursuant to and in accordance with Section 3(c), any requirement by the Company
that the Executive relocate outside of the Fairbanks, Alaska metropolitan area;
(iii) the failure of any successor to assume
this Agreement not later than the date as of which it acquires substantially all of the assets
or businesses of the Company;
(iv) any change in the Executive's title, any
material adverse change or reduction in the Executive’s responsibilities or duties,
or the Board directing the Executive to report to someone other than the Board; or
(v) the assignment to the Executive of any duties
materially inconsistent with his duties as Chief Executive Officer,
provided, however, that no Good Reason
shall have occurred unless the Executive provides the Board written notice of the initial occurrence of the event or condition described
in (i) through (v) immediately above within 120 days of the initial occurrence of such event or condition, the event or
condition is not remedied or cured within 30 days of the Board’s receipt of such written notice, and the Executive actually terminates
his employment with the Company within 180 days of the initial occurrence of such event or condition.
- 13 -
(h) “Change
in Control” means:
(i) any person or group of affiliated or associated
persons acquires more than 50% of the voting power of the Company;
(ii) the consummation of a sale of all or substantially
all of the assets of the Company;
(iii) the liquidation or dissolution of the
Company;
(iv) a
majority of the members of the Board are replaced during any 12-month period by Board members
whose nomination or election was not approved by the members of the Board at the beginning
of such period (the “Incumbent Board”) (provided that any subsequent
members of the Board whose nomination or election was previously approved by the Incumbent
Board shall thereafter be also deemed to be a member of the Incumbent Board); or
(v) the consummation of any merger, consolidation,
or reorganization involving the Company in which, immediately after giving effect to such
merger, consolidation or reorganization, less than 51% of the total voting power of outstanding
stock of the surviving or resulting entity is then “beneficially owned” (within
the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended)
in the aggregate by the stockholders of the Company immediately prior to such merger, consolidation
or reorganization. Notwithstanding the foregoing, in no event shall a Change in Control be
deemed to occur solely as a result of a sale of Company securities or debt as part of a bona
fide (A) capital raising transaction, provided that such transaction is not undertaken
in connection with a merger, consolidation, or reorganization, or (B) internal corporate
reorganization.
(i) For
the avoidance of doubt, the Executive acknowledges and agrees that the termination of this
Agreement in order to facilitate the transfer of the Executive’s employment to Tower
Hill Mines (US) LLC as contemplated by Section 2(a) shall not trigger any entitlement
of the Executive to receive severance or any other rights or benefits under this Section 7.
- 14 -
8. Parachute Payment.
(a) Anything
in this Agreement to the contrary notwithstanding, in the event it shall be determined that
any payment or distribution by the Company or another person to or for the benefit of the
Executive (whether paid or payable or distributed or distributable pursuant to the terms
of this Agreement or otherwise) (a “Payment”) including, by example
and not by way of limitation, acceleration (by the Company or otherwise) of the date of vesting
or payment under any plan, program, arrangement or agreement of the Company or another person,
would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code
of 1986, as amended (the “Code”) or any interest or penalties with respect
to such excise tax (such excise tax and any similar tax imposed by state or local law, together
with any such interest and penalties, shall be referred to as the “Excise Tax”),
then there shall be made a calculation that compares (1) the Executive’s Net After-Tax
Benefit (as defined below) if the Payments are reduced to the minimum extent necessary so
that no portion thereof shall be subject to the Excise Tax (the “Reduced Amount”);
and (2) the Executive’s Net After-Tax Benefit of the Payments. If (2) exceeds
(1), then the Payments shall not be subject to reduction under this Section 8. However,
if (1) exceeds (2), the Payments to the Executive shall be reduced to the Reduced Amount.
“Net After-Tax Benefit” shall mean the sum of (x) all payments that
the Executive receives or is entitled to receive that are in the nature of compensation and
contingent on a change in the ownership or effective control of the Company or in the ownership
of a substantial portion of the assets of the Company within the meaning of Code Section 280G(b)(2) (either,
a “Section 280G Transaction”), as calculated in accordance with Code
Section 280G less (y) the amount of federal, state, local and employment taxes
and Excise Tax (if any) imposed with respect to such payments.
(b) In
the event that a reduction in Payments is required pursuant to this Section 8, then,
except as provided below with respect to Payments that consist of health and welfare benefits,
the reduction in Payments shall be implemented by determining the “Parachute
Payment Ratio” (as defined below) for each Payment and then reducing the Payments
in order beginning with the Payment with the highest Parachute Payment Ratio. For Payments
with the same Parachute Payment Ratio, such Payments shall be reduced based on the time of
payment of such Payments, with amounts being paid furthest in the future being reduced first.
For Payments with the same Parachute Payment Ratio and the same time of payment, such Payments
shall be reduced on a pro-rata basis (but not below zero) prior to reducing Payments next
in order for reduction. For purposes of this Section 8, “Parachute Payment
Ratio” shall mean a fraction, the numerator of which is the value of the applicable
Payment as determined for purposes of Code Section 280G, and the denominator of which
is the financial present value of such Parachute Payment, determined at the date such payment
is treated as made for purposes of Code Section 280G (the “Valuation Date”).
In determining the denominator for purposes of the preceding sentence:
(i) present values shall be determined using
the same discount rate that applies for purposes of discounting payments under Code Section 280G;
(ii) the financial value of payments shall be
determined generally under Q&A 12, 13 and 14 of Treasury Regulation 1.280G-l; and
- 15 -
(iii) other reasonable valuation assumptions
as determined by the Company shall be used.
Notwithstanding the foregoing, Payments
that consist of health and welfare benefits shall be reduced after all other Payments, with health and welfare Payments being made furthest
in the future being reduced first. Upon any assertion by the Internal Revenue Service that any such Payment is subject to the Excise
Tax, the Executive shall be obligated to return to the Company any portion of the Payment determined by the Professional Services Firm
(as defined below) to be necessary to appropriately reduce the Payment so as to avoid any such Excise Tax.
(c) All
determinations required to be made under this Section 8, including whether and when
a Payment is cut back pursuant to Section 8(b) and the amount of such cut-back,
and the assumptions to be utilized in arriving at such determination, shall be made by a
professional services firm designated by the Board that is experienced in performing calculations
under Section 280G (the “Professional Services Firm”) which
shall provide detailed supporting calculations both to the Company and the Executive. If
the Professional Services Firm is serving as accountant or auditor for the individual, entity
or group effecting the Section 280G Transaction, the Board shall appoint another qualified
professional services firm to make the determinations required hereunder (which accounting
firm shall then be referred to as the Professional Services Firm hereunder). All fees and
expenses of the Professional Services Firm shall be borne solely by the Company.
9. Conflicts of Interest. The Executive
agrees that he shall promptly disclose to the Board any conflict of interest involving the
Executive upon the Executive becoming aware of such conflict. The Executive's ownership of
an interest not in excess of one percent in a business organization that competes with the
Company or its affiliates shall not be deemed to constitute a conflict of interest.
10. Confidentiality.
(a) The Company agrees to provide the Executive
valuable Confidential Information of the Company and its affiliates and of third parties
who have supplied such information to the Company. In consideration of such Confidential
Information and other valuable consideration provided hereunder, the Executive agrees to
comply with this Section 10.
(b) “Confidential
Information” means, without limitation and regardless of whether such information
or materials are expressly identified as confidential or proprietary:
(i) any and all non-public, confidential or
proprietary information or work product of the Company or its affiliates;
(ii) any information that gives the Company
or its affiliates a competitive business advantage or the opportunity of obtaining such advantage;
(iii) any information the disclosure or improper
use of which is reasonably expected to be detrimental to the interests of the Company or
its affiliates;
- 16 -
(iv) any trade secrets of the Company or its
affiliates; and
(v) any other non-public information regarding
the Company or any of its affiliates, or its or their past, present or future, direct or
indirect, potential or actual officers, directors, employees, owners, or business partners,
including but not limited to information regarding any of their businesses, operations, assets,
liabilities, properties, systems, methods, models, processes, results, performance, investments,
investors, financial affairs, future plans, business prospects, acquisition or investment
opportunities, strategies, business partners, business relationships, contracts, contractual
relationships, organizational or personnel matters, policies or procedures, management or
compensation matters, compliance or regulatory matters, as well as any technical, seismic,
industry, market or other data, studies or research, or any forecasts, projections, valuations,
derivations or other analyses, performed, generated, collected, gathered, synthesized, purchased
or owned by, or otherwise in the possession of, the Company or its affiliates or which the
Executive has learned of through his employment with the Company.
Confidential Information also includes
any non-public, confidential or proprietary information about or belonging to any third party that has been entrusted to the Company
or its affiliates. Notwithstanding the foregoing, Confidential Information does not include any information which is or becomes generally
known by the public other than as a result of the Executive’s actions or inactions.
(c) Protection. In return for the Company’s
promise to provide the Executive with Confidential Information, the Executive promises:
(i) to keep the Confidential Information, and
all documentation, materials and information relating thereto, strictly confidential;
(ii) not to use the Confidential Information
for any purpose other than as required in connection with fulfilling his duties as CEO for
the benefit of the Company; and
(iii) to return to the Company all documents
containing Confidential Information in the Executive's possession upon separation from the
Company for any reason.
(d) Value and Security. The Executive
understands and agrees that all Confidential Information, and every portion thereof, constitutes
the valuable intellectual property of the Company, its affiliates, and/or third parties,
and the Executive further acknowledges the importance of maintaining the security and confidentiality
of the Confidential Information and of not misusing the Confidential Information.
- 17 -
(e) Exceptions. Notwithstanding anything
in this Agreement, the Executive may disclose, without violating the terms of this Agreement,
Confidential Information that (a) is or becomes generally known to the public through
no action on my part; (b) is generally disclosed to third parties by the Company without
restriction on such third parties; (c) is approved for release by written authorization
of the Company; or (d) is required to be disclosed by law, regulation, order, decree
or legal process pursuant to Section 10(f). The Executive further understands that nothing
in this Agreement prevents the Executive from disclosing information about the terms and
conditions of the Executive’s employment with others to the extent expressly permitted
by Section 7 of the National Labor Relations Act, or to the extent that such disclosure
is protected under the applicable provisions of law or regulation, including but not limited
to “whistleblower” statutes or other similar provisions that protect such disclosure,
to the extent any such rights are not permitted by applicable law to be the subject of nondisclosure
obligations.
(f) Disclosure Required By Law. If
the Executive is legally required to disclose any Confidential Information, the Executive
shall promptly notify the Company in writing of such request or requirement so that the Company
and/or its affiliates may seek an appropriate protective order or other relief. The Executive
agrees to cooperate with and not to oppose any effort by the Company and/or its affiliates
to resist or narrow such request or to seek a protective order or other appropriate remedy.
In any case, the Executive will:
(i) disclose only that portion of the Confidential
Information that, according to the advice of the Executive’s counsel, is required to
be disclosed (and the Executive’s disclosure of Confidential Information to the Executive’s
counsel in connection with obtaining such advice shall not be a violation of this Agreement);
(ii) use reasonable efforts (at the expense
of the Company) to obtain assurances that such Confidential Information will be treated confidentially;
and
(iii) promptly notify the Company and/or its
affiliates in writing of the items of Confidential Information so disclosed.
(g) Notwithstanding anything in this Agreement
to the contrary, pursuant to Defend Trade Secrets Act of 2016 (“DTSA”),
18 USC § 1833(b), the Executive agrees and understands that an individual may not be
held liable under any criminal or civil federal or state trade secret law for disclosure
of a trade secret: (i) made in confidence to a government official, either directly
or indirectly, or to an attorney, solely for the purpose of reporting or investigating a
suspected violation of law or (ii) in a complaint or other document filed in a lawsuit
or other proceeding, if such filing is made under seal. Additionally, an individual suing
an entity for retaliation based on the reporting of a suspected violation of law may disclose
a trade secret to his or her attorney and use the trade secret information in the court proceeding,
so long as any document containing the trade secret is filed under seal and the individual
does not disclose the trade secret except pursuant to court order. Nothing in this Agreement
is intended to conflict with 18 USC § 1833(b) or create liability for disclosures
of trade secrets that are expressly allowed by 18 USC § 1833(b). Unless expressly provided,
the DTSA does not authorize, or limit liability for, an act that is otherwise prohibited
by law, such as the unlawful access of material by unauthorized means.
- 18 -
Furthermore, nothing in this Agreement
prohibits or restricts the Executive (or the Executive’s attorney) from initiating communications directly with, responding to
an inquiry from, or providing testimony before the Securities and Exchange Commission (SEC), the Financial Industry Regulatory Authority
(FINRA), any other self-regulatory organization or any other federal or state regulatory authority regarding this Agreement or its underlying
facts or circumstances or a possible securities law violation.
(h) Third-Party Confidentiality Agreements.
To the extent that the Company or its affiliates possesses any Confidential Information which
is subject to any confidentiality agreements with, or obligations to, third parties, the
Executive shall comply with all such agreements or obligations in full. The immediately preceding
sentence shall apply only if the Company or any affiliate has provided the Executive with
a copy of such agreements, and the Executive may disclose such agreements and any related
Confidential Information to the Company’s attorneys and rely on their advice regarding
compliance therewith.
(i) The
Executive understands that nothing in this Agreement shall in any way limit or prohibit the
Executive from engaging in any Protected Activity. For purposes of this Agreement, “Protected
Activity” means filing a charge or complaint with, reporting possible violations
of law to, otherwise communicating or cooperating with or participating in any investigation
or proceeding that may be conducted by any federal, state or local government agency, self-regulatory
organization, or commission, including the Securities and Exchange Commission, the Equal
Employment Opportunity Commission, the Occupational Safety and Health Administration, and
the National Labor Relations Board (“Government Agencies”), or taking
other actions protected under federal or state whistleblower law (including receiving a whistleblower
award). The Executive understands that in connection with such Protected Activity, the Executive
is permitted to disclose documents or other information as permitted by law, and without
giving notice to, or receiving authorization from, the Company. Notwithstanding, in making
any such disclosures or communications, the Executive agrees to take all reasonable precautions
to prevent any unauthorized use or disclosure of any information that may constitute Company
Confidential Information to any parties other than the Government Agencies. The Executive
further understands that “Protected Activity” does not include the disclosure
of any Company attorney-client privileged communications. In addition, the Executive hereby
acknowledges that the Company has provided the Executive with notice in compliance with the
Defend Trade Secrets Act of 2016 regarding immunity from liability for limited disclosures
of trade secrets.
- 19 -
11. Agreement Not to Compete.
(a) The Executive acknowledges that, in the
course of the performance of the Executive’s duties and obligations under this Agreement,
the Executive will acquire access to Confidential Information and the Executive further acknowledges
that if the Executive were to compete against the Company or any of its affiliates, or be
employed or in any way involved with a person or company that was is competitive or in conflict
with the business of the Company or any of its affiliates during the twelve month period
immediately following the termination of the Executive's employment with the Company, the
Company and its affiliates would suffer irreparable damages. Accordingly, the Executive will
not, at any time or in any manner, after the Start Date and during the Term or at any time
within one (1) year following the termination of the Executive’s employment for
whatever reason, and notwithstanding any alleged breach of this Agreement:
(i) directly or indirectly engage in any business
involving the acquisition, exploration, development or operation of any mineral property
which is competitive or in conflict with the business of the Company or any of its affiliates;
(ii) accept employment or office with or render
services or advice to any other company, firm or individual, whether a competitor or otherwise,
engaged in the acquisition, exploration, development or operation of mineral property which
is competitive or in conflict with the business of the Company or any of its affiliates;
(iii) solicit or induce any director, officer
or employee of the Company or of any its affiliates to end their association with the Company
or any of its affiliates;
(iv) directly or indirectly, on the Executive’s
own behalf or on behalf of others, solicit, divert or appropriate to or in favor of any person,
entity or corporation, any maturing business opportunity or any business of the Company or
of any of its affiliates; or
(v) directly or indirectly take any other action
inconsistent with the fiduciary relationship of a senior officer to his company, without
the prior written consent of the Board, which consent may be withheld in the Board’s
sole discretion.
(b) For this purpose of this Section 11,
a mineral property which is competitive or in conflict with the business of the Company or
any of its affiliates (including but not limited to ITH) means one:
(i) which is primarily prospective for gold,
and
(ii) any part of which lies within a horizontal
distance of twenty-five (25) kilometers from the outer boundaries of any mineral property
in which the Company or any of its affiliates (including but not limited to ITH) holds, or
has the right to acquire, an interest.
- 20 -
12. Compliance with Securities Laws. The
Executive acknowledges that ITH is a “reporting issuer” and a public company,
and that the common shares of ITH trade on various stock exchanges, including the Toronto
Stock Exchange in Canada and the NYSE-American in the United States. As a consequence of
this, all directors, officers and employees of the ITH Group are subject to securities laws
in both Canada and the United States. The Executive acknowledges that much of the information
which will be received by, or become known to, him during the Term (whether or not such information
is also Confidential Information) is likely to be material and non-public information with
respect to the business, affairs, assets, mineral properties and/or status (financial and
otherwise) of the members of the ITH Group and may constitute material facts or material
changes (as those terms are defined in the Securities Act (B.C.)), and that the provisions
of applicable securities legislation, including, without limitation, section 86 of the Securities
Act (British Columbia), prohibit:
(a) trading (which includes the exercise of
a previously granted stock option) in securities of a reporting issuer such as ITH by a person
who knows of a material fact or a material change with respect to that issuer that has not
been generally disclosed, or
(b) informing another person of a material
fact or a material change with respect to that reporting issuer before the material fact
or material change has been generally dis-closed, unless the giving of such information is
necessary in the course of business of the reporting issuer or of such person.
The Executive acknowledges that the
penalties for violation of such prohibitions are severe and that the carrying on of any such activities will materially and adversely
affect the ITH Group. Accordingly, the Executive will be required to take all necessary steps to fully comply with applicable legislation
regarding any trading in the securities of ITH and will fully and timely comply with all policies and procedures of the ITH Group in
that regard.
13. Withholdings. The Company may withhold
and deduct from any payments made or to be made pursuant to this Agreement:
(i) all federal, state, local and other withholdings
and similar taxes as may be required pursuant to any law or governmental regulation or ruling;
and
(ii) any deductions consented to in writing
by the Executive.
14. Severability. It is the desire of the
Parties that this Agreement be enforced to the maximum extent permitted by law, and should
any provision contained herein be held unenforceable by a court of competent jurisdiction
or arbitrator (pursuant to Section 16), the Parties hereby agree and consent that such
provision shall be reformed to create a valid and enforceable provision to the maximum extent
permitted by law; provided, however, if such provision cannot be reformed, it shall be deemed
ineffective and deleted from this Agreement without affecting any other provision of this
Agreement. Whenever possible, each provision or portion of any provision of this Agreement,
including but not limited to Section 11, shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision or portion of any provision
of this Agreement is held to be invalid, illegal or unenforceable in any respect under any
applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability
shall not affect any other provision or portion of any provision in such jurisdiction, and
this Agreement shall be reformed, construed and enforced in such jurisdiction as if such
invalid, illegal or unenforceable provision or portion of any provision had never been contained
herein. If, in any judicial or arbitral proceeding, a court or finder of fact refuses to
enforce any of such separate covenants (or any part thereof), the Executive and Company agree
that such unenforceable covenant (or such part) shall be eliminated from this Agreement to
the extent necessary to permit the remaining separate covenants (or portions thereof) to
be enforced. If the provisions of Section 11 are deemed to exceed the time, geographic
or scope limitations permitted by applicable law, the Executive and Company agree that such
provisions shall be reformed to the maximum time, geographic or scope limitations, as the
case may be, permitted by applicable law.
- 21 -
15. Title and Headings; Construction. Titles
and headings to Sections hereof are for the purpose of reference only and shall in no way
limit, define or otherwise affect the provisions hereof. Any and all Exhibits referred to
in this Agreement are, by such reference, incorporated herein and made a part hereof for
all purposes. The words “herein”, “hereof”, “hereunder”
and other compounds of the word “here” shall refer to the entire Agreement and
not to any particular provision hereof. This Agreement shall be deemed drafted equally by
both the Parties. Its language shall be construed as a whole and according to its fair meaning.
Any presumption or principle that the language is to be construed against any Party shall
not apply.
16. Arbitration; Injunctive Relief; Attorneys’
Fees.
(a) Subject to subsection (b) below,
any dispute, controversy or claim between the Executive and the Company arising out of or
relating to this Agreement, the Executive’s employment with the Company, or the termination
of either (other than with respect to claims arising exclusively under one or more of the
Company’s employee benefit plans subject to ERISA) will be finally settled by mandatory
binding arbitration before a single arbitrator in Vancouver, British Columbia administered
by the Vancouver International Arbitration Centre (the “VanIAC”) in Vancouver,
British Columbia in accordance with the rules provided for by the VanIAC’s Domestic
Arbitration Rules (the “Arbitration Rules”) then in effect or such
other rules as the Parties may agree. The Parties shall attempt to mutually select the
arbitrator. If the Parties are unable to mutually agree on an arbitrator, then the arbitrator
shall be selected in accordance with the rules provided for by the Arbitration Rules.
Notwithstanding the foregoing, if any
claims as a matter of law cannot be subject to arbitration, the Executive agrees that to fullest extent permitted by law, such claims
not lawfully subject to arbitration shall be stayed pending full and final resolution of any other claims by arbitration, and any claim
joined or asserted in conjunction with those that cannot be arbitrated shall be severed and subject to arbitration under this Section 16
. The arbitrator shall apply the substantive law (and the law of remedies, if applicable) of the Province of British Columbia, or federal
law, or both, as applicable to the claim(s) asserted.
The arbitrator’s award shall be
final and binding on both Parties. The arbitrator shall issue a written decision stating the factual findings and conclusions on which
the award is based, and shall have full authority to award all remedies that would be available in court. Any judgment upon the award
rendered by the arbitrator may be entered in any court having jurisdiction thereof.
In any such arbitration, the Parties
may conduct discovery to the same extent as would be permitted in a court of law. Any Party may file a motion to dismiss and/or a motion
for summary judgment, and the arbitrator shall have the authority to issue an award or partial award without conducting an arbitration
hearing on the grounds that there is no claim stated on which relief can be granted or that there is no genuine issue as to any material
fact and that a party is entitled to judgment as a matter of law. Upon the request of any Party, the arbitrator will establish a briefing
schedule and, if necessary, schedule an opportunity for oral argument prior to considering such dispositive motions.
- 22 -
(b) Notwithstanding subsection (a) above,
an application for emergency or temporary injunctive relief by either Party shall not be
subject to arbitration under this Section 16; provided, however, that the remainder
of any such dispute (beyond the application for emergency or temporary injunctive relief)
shall be subject to arbitration under this Section 16. The Executive acknowledges that
the Executive’s violation of Sections 9, 10 and/or 11 of this Agreement shall cause
irreparable harm to the Company and its affiliates, the Executive agrees not to contest that
the Executive's violation of Sections 9, 10 and/or 11 of this Agreement will cause irreparable
harm to the Company and its affiliates (including but not limited to ITH), and the Executive
agrees that the Company shall be entitled as a matter of right to specific performance of
the Executive’s obligations under Sections 9, 10 and 11 and an injunction, from any
court of competent jurisdiction, restraining any violation or further violation of such agreements
by the Executive or others acting on his behalf, without any showing of irreparable harm
and without any showing that the Company and its affiliates does not have an adequate remedy
at law. The right of the Company and its affiliates to injunctive relief shall be cumulative
and in addition to any other remedies provided by law or equity.
(c) Each Party shall share equally the cost
of the arbitrator and bear its own costs and attorneys’ fees incurred in connection
with any arbitration to the extent permitted by applicable law, unless a statutory claim
authorizing the award of attorneys’ fees is at issue, in which event the arbitrator
may award a reasonable attorneys’ fee in accordance with the jurisprudence of that
statute.
(d) Nothing in this Section 16 shall
prohibit a party to this Agreement from instituting litigation to enforce any arbitration
award.
(e) BY AGREEING TO THIS BINDING MUTUAL ARBITRATION
AGREEMENT, EXCEPT WHERE EXPLICITLY EXCLUDED IN THIS AGREEMENT, BOTH THE COMPANY AND EXECUTIVE
GIVE UP ALL RIGHTS TO A TRIAL BY JURY, AND ARE GIVING UP THEIR NORMAL RIGHTS OF APPEAL FOLLOWING
THE RENDERING OF A DECISION, EXCEPT AS THE BRITISH COLUMBIA ARBITRATION ACT ALLOWS FOR JUDICIAL
REVIEW OF ARBITRATION PROCEEDINGS.
17. Governing Law. THIS AGREEMENT WILL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE PROVINCE OF BRITISH COLUMBIA,
WITHOUT REFERENCE TO PRINCIPLES OF CONFLICT OF LAWS. THE EXCLUSIVE VENUE FOR THE RESOLUTION
OF ANY DISPUTE RELATING TO THIS AGREEMENT OR THE EXECUTIVE'S EMPLOYMENT (THAT IS NOT SUBJECT
TO ARBITRATION UNDER SECTION 16 FOR ANY REASON) SHALL BE IN THE BRITISH COLUMBIA SUPREME
COURT LOCATED IN VANCOUVER, BRITISH COLUMBIA AND THE PARTIES HEREBY EXPRESSLY CONSENT TO
THE JURISDICTION OF THOSE COURTS.
- 23 -
18. Entire Agreement and Amendment. This
Agreement contains the entire agreement of the Parties with respect to the Executive's employment
and the other matters covered herein (except to the extent that other agreements are specifically
referenced herein); moreover, this Agreement supersedes all prior and contemporaneous agreements
and understandings, oral or written, between the Parties hereto concerning the subject matter
hereof and thereof. This Agreement may be amended, waived or terminated only by a written
instrument executed by both Parties.
19. Survival of Certain Provisions. Wherever
appropriate to the intention of the Parties, the respective rights and obligations of the
Parties, including, but not limited to, the rights and obligations set forth in Sections
6 through 16 hereof, shall survive any termination or expiration of this Agreement for any
reason.
20. Waiver of Breach. No waiver by either
pay hereto of a breach of any provision of this Agreement by the other Party, or of compliance
with any condition or provision of this Agreement to be performed by such other Party, will
operate or be construed as a waiver of any subsequent breach by such other Party or any similar
or dissimilar provision or condition at the same or any subsequent time. The failure of either
Party hereto to take any action by reason of any breach will not deprive such Party of the
right to take action at any time while such breach continues.
21. Assignment. Neither this Agreement
nor any rights or obligations hereunder shall be assignable or otherwise subject to hypothecation
by the Executive (except by will or by operation of the laws of intestate succession) or
by the Company, except that the Company shall assign this Agreement to any successor (whether
by merger, purchase or otherwise) to all or substantially all of the equity, assets or businesses
of the Company, if such successor expressly agrees to assume the obligations of the Company
hereunder.
22. Notices. Notices provided for in this
Agreement shall be in writing and shall be deemed to have been duly received:
(a) when delivered in person or sent by facsimile
transmission;
(b) on the first business day after such notice
is sent by air express overnight courier service; or
(c) on the third business day following deposit
in the United States mail, registered or certified mail, return receipt requested, postage
prepaid and addressed,
to the following address, as applicable:
If to Company, addressed
to:
International Tower Hill Mines Ltd.
Suite 200 – 506 Gaffney Road
Fairbanks, Alaska 99701
Attention: The Board
- 24 -
If
to the Executive:
XXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXX
Attention: David Wiens
addressed to the address
set forth below the Executive’s name on the execution page hereof;
or to such other address as either
Party may have furnished to the other Party in writing in accordance with this Section 22.
23. Counterparts. This Agreement may be
executed in any number of counterparts, each of which when so executed and delivered shall
be an original, but all such counterparts shall together constitute one and the same instrument.
Each counterpart may consist of a copy hereof containing multiple signature pages, each signed
by one Party, but together signed by both Parties.
24. Definitions. The Parties agree that,
as used in this Agreement, the following terms shall have the following meanings:
(a) an
“affiliate” of a person shall mean any person directly or indirectly
controlling, controlled by, or under common control with, such person;
(b) the
terms “controlling, controlled by, or under common control
with” shall mean the possession, directly or indirectly, of the power to direct
or influence or cause the direction or influence of management or policies (whether through
ownership of securities or other ownership interest or right, by contract or otherwise) of
a person; and
(c) the
term “person” shall mean a natural person, partnership (general
or limited), limited liability Company, trust, estate, association, corporation, custodian,
nominee, or any other individual or entity in its own or any representative capacity, in
each case, whether domestic or foreign.
25. Internal Revenue Code
Section 409A.
(a) If at the time of the Executive’s
separation from service:
(i) the Executive is a specified employee (within
the meaning of Section 409A of the Code, and using the identification methodology selected
by the Company from time to time); and
(ii) the Company makes a good faith determination
that an amount payable hereunder constitutes deferred compensation (within the meaning of
Section 409A of the Code), the payment of which is required to be delayed pursuant to
the six-month delay rule set forth in Section 409A of the Code in order to avoid
additional taxes or interest under Section 409A of the
Code,
- 25 -
then the Company will not pay such amount
on the otherwise scheduled payment date but will instead pay it in a lump sum on the first to occur of (x) the first business day
after such six-month period, (y) the Executive's death, or (z) such other date as will not cause such payment to be subject
to tax or interest under Code Section 409A.
(b) It is the intention of the Parties that
payments or benefits payable under this Agreement not be subject to the additional tax or
interest imposed pursuant to Code Section 409A. To the extent such potential payments
or benefits could become subject to Code Section 409A, the Parties shall cooperate to
amend this Agreement with the goal of giving the Executive the economic benefits described
herein in a manner that does not result in such tax being imposed. The Executive shall, at
the request of the Company, take any action (or refrain from taking any action), required
to comply with any correction procedure promulgated pursuant to Code Section 409A. In
no event shall the Company be liable to the Executive for any taxes, penalties, or interest
that may be due as a result of the application of Code Section 409A.
(c) For purposes of Code Section 409A,
each payment made under this Agreement shall be treated as a separate payment, and the right
to a series of installment payments under this Agreement is to be treated as a right to a
series of separate payments.
(d) For purposes of determining the timing
of any payment of severance compensation, the Executive will be deemed to have a termination
of employment only upon a “separation from service” within the meaning of Code
Section 409A.
(e) Any amount that the Executive is entitled
to be reimbursed under this Agreement will be reimbursed to the Executive as promptly as
practical, and in any event not later than the last day of the calendar year following the
year in which the expenses were incurred.
(f) The Executive's termination of his employment
for Good Reason is intended to be a separation from service for good reason as described
in Treas. Reg. § 1.409A-1(n)(2) and this Agreement shall be interpreted and construed
accordingly.
(g) For purposes of this Agreement, each payment
of severance compensation is intended to be excepted from Code Section 409A to the maximum
extent provided under Code Section 409A as follows:
(i) each payment that is scheduled to be made
following the Executive's termination of employment and within the applicable 2 1/2 month
period specified in Treas. Reg. § 1.409A(b)(4) is intended to be excepted under
the short-term deferral exception as specified in Treas. Reg.§ 1.409A-1(b)(4); and
- 26 -
(ii) each payment that is not otherwise excepted
under the short-term deferral exception is intended to be excepted under the involuntary
separation pay exception as specified in Treas. Reg. § 1.409A-1(b)(9)(iii) or the
exception for limited payments described in Treas. Reg. § 1.409A-1(b)(9)(v)(D).
26. Employment at Will. The Executive agrees
that, by signing below, he agrees that he is an employee at will and just as he is free to
terminate his employment at any time, for any reason, the Company is also free to terminate
his employment at any time, for any reason subject to compliance with the terms of this Agreement.
27. Currency. All dollar amounts referred
to in this Agreement and in the attached Exhibits are expressed in United States dollars.
SIGNATURE PAGE FOLLOWS
- 27 -
IN WITNESS WHEREOF, the Executive and the Company
have executed this Agreement to be effective for all purposes as
of the Effective Date.
EXECUTIVE:
Dated: July 27, 2026
/s/ David Wiens
David Wiens
XXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXX
THE COMPANY:
Dated: July 27, 2026
By:
/s/ Marcelo Kim
Marcelo Kim, Chair
International Tower Hill Mines Ltd.
Exhibit “A”
Description of Duties
and Responsibilities of Chief Executive Officer
The Chief Executive Officer (“CEO”)
shall be responsible for the overall leadership, management, and operational performance of International Tower Hill Mines Ltd. (“ITH”),
subject to the oversight and direction of the Board of Directors.
The CEO shall be responsible for driving the
creation of sustainable shareholder value as the Livengood Gold Project advances through feasibility study, permitting, financing, construction,
and operation.
The CEO’s responsibilities shall include:
· Overseeing the Company’s health,
safety, environmental, and regulatory compliance programs to ensure they meet or exceed applicable
legal requirements and corporate standards;
· Developing the Company’s strategic
vision and business plan in consultation with the Board; maintaining structured, independent
operational reporting to keep the Board fully informed of project milestones, material developments,
and financial metrics
· Executing the business plan at a high
quality of services in accordance with established schedules, budgets, and performance expectations;
· Creating and maintaining investor
confidence in the Company’s execution strategy while enhancing the Company’s
reputation within the investment community, serving as a designated external representative
for the Company to external parties;
· Recruiting, developing, and retaining
a high-performing management team capable of advancing the Company through feasibility study,
permitting, financing, construction and operation, including maintaining appropriate succession
planning for senior leadership roles; cultivating a high-performance culture aligned with
the Company’s strategic vision;
· Developing and protecting effective
relationships with key stakeholders, including local communities, and State and Federal government
agencies in Alaska, to support the Company’s permitting and operational objectives;
· Developing and executing the Company’s
financing strategies and activities by gaining access to capital markets on appropriate terms
in coordination with the Board;
· Evaluating and pursuing strategic
partnerships, merger, acquisition, and business development opportunities when appropriate
that align with the Company’s long-term objectives;
· Ensuring compliance with applicable
securities laws, corporate governance standards, and Company policies;
· Serving as a member of the Company
Board; provided that no additional fees will be provided for such Board service.
· Supporting professional development
activities, including service on external boards where approved by the Board; and
· Performing such other duties as may
reasonably be assigned by the Board of Directors.
Exhibit B
Equity Award Agreement
[see attached]
INTERNATIONAL TOWER HILL MINES LTD.
INDUCEMENT AWARD AGREEMENT FOR RESTRICTED SHARE UNITS
This Inducement Award Agreement
for Restricted Share Units (this “Agreement”) is made and entered into as of [●], 2026 (the “Grant
Date”) by and between International Tower Hill Mines Ltd. (the “Company”) and David Wiens (the “Grantee”).
WHEREAS,
the Board of Directors of the Company (the “Board”) desires to award US$1,645,000 of restricted share units (“Units”)
to the Grantee pursuant to (1) the inducement grant exception under Section 711(a) of the NYSE American Company Guide
and (2) Section 613(c) of the TSX Company Manual, each of which permits, under specified circumstances, the issuance of
equity-based compensation without shareholder approval to induce someone to enter into an employment arrangement with the Company.
AND
WHEREAS, the award of the Units shall be subject to approval by the NYSE American and the Toronto Stock Exchange and are not
being issued pursuant to the Company’s 2017 Deferred Share Unit Incentive Plan or any other equity incentive plan of the Company.
NOW,
THEREFORE, in consideration of the mutual covenants and promises hereinafter set forth and for other good and valuable consideration,
the parties hereto hereby mutually covenant and agree as follows:
1. Grant
of Restricted Share Units.
(a) The
Grantee acknowledges that the award of Units under this Agreement satisfies in full the obligation of the Company to grant US$1,645,000
of restricted share units to the Grantee pursuant to the employment agreement dated [●], 2026 (as such agreement may be amended
from time to time, the “Employment Agreement”) by and between the Company and the Grantee. In the event that the employment
of the Grantee is at any time after the Grant Date transferred to a subsidiary of the Company, any reference to the Employment Agreement
shall be deemed for all purposes of this Agreement to be a reference to the employment agreement between the Grantee and such subsidiary.
In the event of any conflict between the terms of this Agreement and the terms of the Employment Agreement, the terms of the Employment
Agreement shall prevail.
(b) As
of the Grant Date, the Company hereby issues to the Grantee an award consisting of [●] Units.1
Each Unit represents the right to receive one common share of the Company (each, a “Common Share”), or, at the discretion
of the Board, the cash value equivalent thereof on and subject to the terms and conditions set forth in this Agreement. The Units shall
be credited to a bookkeeping account maintained for the Grantee on the books and records of the Company and until settled shall continue
for all purposes to be part of the general assets of the Company.
2. Consideration.
The grant of the Units is made in consideration of the services to be rendered by the Grantee to the Company.
3. Vesting.
(a) Subject
to early vesting pursuant to and in accordance with the Employment Agreement, and except as otherwise provided herein, provided that
the Grantee remains in Continuous Service through the applicable vesting date, the Units will vest in accordance with the following schedule:
Vesting
Date
Number
of Units That Vest
First
anniversary of the Grant Date
1/3
of the Units
Second
anniversary of the Grant Date
1/3
of the Units
Third
anniversary of the Grant Date
1/3
of the Units
Once vested pursuant to and in accordance with
this Agreement or the Employment Agreement, the applicable number of Units become “Vested Units.” For purposes of
this Agreement, “Continuous Service” means the Grantee’s continued employment with the Company or any of its
affiliates pursuant to the Employment Agreement.
1 Number of Units issued to be determined with five-day
VWAP on the NYSE-American on the Grant Date.
(b) Subject
to early vesting pursuant to and in accordance with the Employment Agreement, if the Grantee’s Continuous Service terminates for
any reason at any time before all of his Units have vested pursuant to and in accordance with this Agreement or the Employment Agreement,
all Units other than Vested Units shall be automatically forfeited upon such termination of Continuous Service and the Company shall
not have any further obligations in respect of such Units to the Grantee under this Agreement.
4. Restrictions.
Subject to Section 10 hereof, the Units or the rights relating thereto may not be assigned, alienated, pledged, attached, sold or
otherwise transferred or encumbered by the Grantee. Any attempt to assign, alienate, pledge, attach, sell or otherwise transfer or encumber
the Units or the rights relating thereto shall be wholly ineffective and, if any such attempt is made, the Units will be forfeited by
the Grantee and all of the Grantee’s rights to such Units shall immediately terminate without any payment or consideration by the
Company.
5. Rights
as Shareholder; Dividend Equivalents.
(a) The
Grantee shall not have any rights of a shareholder with respect to the Common Shares underlying the Units unless and until the Units
vest and are settled by the issuance of such Common Shares. Only upon and following the issuance of Common Shares on settlement of the
Units will the Grantee be the record owner of the Common Shares underlying the Units or otherwise be entitled to any rights (including
voting rights or the right to receive dividends) in respect of such Common Shares.
(b) For
the avoidance of doubt, the Grantee shall not be entitled to any dividend equivalents with respect to the Units to reflect any dividends
payable on Common Shares.
6. Settlement
of Units. Subject to Section 8 hereof, promptly following each vesting date, and in any event no later than thirty (30)
days following each vesting date, the Company shall, at the discretion of the Board, deliver to the Grantee the number of Common Shares
equal to the number of Units that vested on such date or cash in an amount equivalent to the Fair Market Value of such Common Shares
on the applicable vesting date (or any combination Common Shares and cash as may be determined in the sole discretion of the Company).
For purposes of this Agreement, the “Fair Market Value” of a Common Share, as at any date, means the weighted average of
the prices at which the Shares traded on the TSX (or, if the Shares are not then listed and posted for trading on the TSX or are then
listed and posted for trading on more than one stock exchange, on such stock exchange on which the majority of the trading volume of
the Common Shares occurs) for the five trading days on which the Common Shares traded on such exchange immediately preceding such date.
In the event that the Common Shares are not listed and posted for trading on any stock exchange, the Fair Market Value of a Common Share
shall be the fair market value of a Common Share as determined by the Board in its discretion, acting reasonably and in good faith.
7. No
Impact on Other Benefits; No Employment Rights. The value of the Grantee’s Units is not part of his normal or
expected compensation for purposes of calculating any severance, retirement, welfare, insurance or similar employee benefit. Nothing
in this Agreement shall affect in any manner whatsoever the right or power of the Company, or an affiliate of the Company, to terminate
Grantee’s employment or consulting relationship, for any reason, with or without cause.
8. Adjustments.
In the event that (a) there is any change in the Common Shares through subdivision, consolidation, reclassification, amalgamation,
merger or otherwise or (b) as a result of any recapitalization, merger, consolidation or other transaction, the Common Shares are
converted into or exchangeable for any other securities or property, the Company may make such adjustments to any outstanding Units as
the Board may, in its discretion, acting reasonably and in good faith, consider appropriate in the circumstances to prevent dilution
or enlargement of the rights granted to the Grantee under this Agreement and/or to provide for the Grantee to receive and accept such
other securities or property in lieu of Common Shares as the Board in its discretion considers fair and appropriate in the circumstances,
and the Grantee shall be bound by any such determination.
9. Tax
Liability and Withholding.
(a) The
Grantee acknowledges that the Units shall be taxable compensation upon settlement. The Company may take any action the Company deems
necessary, acting reasonably and in good faith, to satisfy any requirements for withholding of all applicable federal, state or local
income or employment tax or assessment. The Grantee may satisfy any withholding obligation by any of the following means, or by a combination
of such means: (i) tendering a cash payment; (ii) authorizing the Company to withhold Common Shares from the Common Shares
otherwise issuable or deliverable to the Grantee as a result of the vesting of the Units; provided, however, that no Common Shares shall
be withheld with a value exceeding the maximum amount of tax required to be withheld by law; or (iii) delivering to the Company
previously owned and unencumbered Common Shares.
2
(b) Notwithstanding
any action the Company takes with respect to any or all income tax, social insurance, payroll tax, or other tax-related withholding (“Tax-Related
Items”), the ultimate liability for all Tax-Related Items is and remains the Grantee’s responsibility and the Company
(i) makes no representation or undertakings regarding the treatment of any Tax-Related Items in connection with the grant, vesting
or settlement of the Units or the subsequent sale of any shares; and (ii) does not commit to structure the Units to reduce or eliminate
the Grantee’s liability for Tax-Related Items.
10. Death
of the Grantee. Any distribution or delivery to be made to the Grantee under this Agreement due to Grantee’s death after vesting
but before settlement will be made to the administrator or executor of the Grantee’s estate. Any such administrator or executor
must furnish the Company with (a) written notice of his or her status as transferee, and (b) evidence satisfactory to the Company
to establish the validity of the transfer and compliance with any applicable laws pertaining to said transfer.
11. Compliance
with Law. The issuance and transfer of Common Shares shall be subject to compliance by the Company and the Grantee with all
applicable requirements of federal, state and provincial securities laws and with all applicable requirements of any stock exchange on
which the Common Shares may be listed. Notwithstanding any other provision of this Agreement, no Common Shares shall be issued to the
Grantee unless and until any then applicable requirements of federal, state and provincial laws and regulatory agencies have been fully
complied with to the satisfaction of the Company.
12. Specific
Enforcement. The Grantee expressly acknowledges that the Company may be irreparably damaged if this Agreement is not specifically
enforced. Upon a breach or threatened breach of the terms, covenants or conditions of this Agreement by the Grantee, the Company shall,
in addition to all other remedies, be entitled to apply for a temporary or permanent injunction, or a decree for specific performance,
in accordance with the provisions hereof.
13. Notices.
Any notice required to be delivered to the Company under this Agreement shall be in writing and addressed to the Secretary of the Company
at the Company’s principal corporate offices. Any notice required to be delivered to the Grantee under this Agreement shall be
in writing and addressed to the Grantee at the Grantee’s address as shown in the records of the Company. Either party may designate
another address in writing (or by such other method approved by the Company) from time to time.
14. Governing
Law. This Agreement will be construed and interpreted in accordance with the internal laws of the Province of British Columbia
without regard to conflict of law principles.
15. Administration.
The Board or its Compensation Committee shall have discretion to administer, interpret, and implement this Agreement. Any decisions and
determinations of the Board or its Compensation Commiteee (including determinations of the meaning and reference of terms used in this
Agreement) shall be conclusive upon all persons.
16. Successors
and Assigns. The Company may assign any of its rights under this Agreement. This Agreement will be binding upon and inure
to the benefit of the successors and assigns of the Company. Subject to the restrictions on transfer set forth herein, this Agreement
will be binding upon the Grantee and the Grantee’s beneficiaries, executors, administrators and the person(s) to whom the
Units may be transferred by will or the laws of descent or distribution.
17. Severability.
The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, and each provision of this Agreement shall be severable and enforceable to the extent permitted by law.
18. Discretionary
Nature of Award. The grant of the Units in this Agreement does not create any contractual right or other right to receive
any additional Units or other awards in the future. Future awards, if any, will be at the sole discretion of the Company.
19. Entire
Agreement and Amendments. This Agreement (together with the Employment Agreement) constitutes the entire agreement of the parties
with respect to the subject matter hereof and neither this Agreement (or the Employment Agreement) nor any provision hereof (or thereof)
may be waived, modified, amended or terminated except by a written agreement signed by the parties hereto. No waiver of any breach or
default hereunder shall be considered valid unless in writing, and no such waiver shall be deemed a waiver of any subsequent breach or
default of the same or similar nature.
20. Section 409A.
In accordance with the Employment Agreement, this Agreement is intended to comply with Section 409A of the Internal Revenue Code
of 1986, as amended from time to time (the “Code”) or an exemption thereunder and shall be construed and interpreted
in a manner that is consistent with the requirements for avoiding additional taxes or penalties under Section 409A of the Code.
Notwithstanding the foregoing, the Company makes no representations that the payments and benefits provided under this Agreement comply
with Section 409A of the Code and in no event shall the Company be liable for all or any portion of any taxes, penalties, interest
or other expenses that may be incurred by the Grantee on account of non-compliance with Section 409A of the Code.
3
21. Miscellaneous.
(a) Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which together will constitute one
and the same instrument. Counterpart signature pages to this Agreement transmitted by facsimile transmission, by electronic mail
in portable document format (.pdf), or by any other electronic means intended to preserve the original graphic and pictorial appearance
of a document, will have the same effect as physical delivery of the paper document bearing an original signature.
(b) Acceptance.
The Grantee hereby acknowledges receipt of this Agreement. The Grantee has read and understands the terms and provisions hereof, and
accepts the Units subject to all of the terms and conditions of this Agreement.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
INTERNATIONAL TOWER HILL MINES LTD.
By:
International Tower Hill Mines Inc.,
By:
Authorized Signatory
GRANTEE
David Wiens
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EX-10.2 — EXHIBIT 10.2
EX-10.2
Filename: tm2621754d1_ex10-2.htm · Sequence: 3
Exhibit 10.2
EMPLOYMENT AGREEMENT
This Employment Agreement (“Agreement”)
is made and entered into by and between Tower Hill Mines (US) LLC (hereafter, the “Company”), an indirect wholly owned subsidiary
of International Tower Hill Mines Ltd. (“ITH”), and Shane Parrow (hereafter, the “Executive”) and is effective
as of July 27, 2026 (the “Effective Date”). The Company and the Executive shall be collectively referred to as the “Parties”
and individually as a “Party”.
1. Employment Period.
(a) The period commencing on the Effective
Date and ending at the close of business on the date that this Agreement and the Executive’s
employment is terminated (the “Termination Date”) shall constitute the “Employment
Period”.
(b) Notwithstanding any other provision of
this Agreement, this Agreement may be terminated at any time during the Employment Period
in accordance with Section 6.
2. Position.
(a) During the Employment Period, the Company
shall be the Executive’s employer, and the Executive shall serve as the President and
Chief Operating Officer of ITH, reporting directly to ITH’s Chief Executive Officer
(“CEO”). The Executive shall also hold all other positions with the Company and
its affiliates as deemed necessary by the Board of Directors of ITH (the “Board”).
On the Termination Date, the Executive shall be deemed to have resigned from all positions
held with any member of the ITH Group (as defined below).
3. Duties and Responsibilities of Executive.
(a) During the Employment Period, and except
as set forth below, the Executive shall devote his full time and attention during normal
business hours to the business of the Company and its affiliates, including serving as (i) President
and Chief Operating Officer of ITH, (ii) President of Tower Hill Mines. Inc. (“THM”)
and (iii) President of Livengood Placers, Inc. (“LPI”). The Executive
will act in the best interests of the Company, ITH, THM, LPI and its and their affiliates
(collectively, the “ITH Group”) and will perform with due care his duties and
responsibilities.
(b) The Executive’s duties will include
those normally incidental to the position of President and Chief Operating Officer (to include
the duties set forth in Exhibit A), as well as such additional duties consistent therewith
as may be assigned to him by the Board. If, in its sole and complete discretion, the Board
changes the Executive’s title and/or the Executive’s reporting responsibilities,
the Board may make such changes, and such changes shall thereafter apply for purposes of
this Agreement, subject only to the provisions of Section 7(c) hereof.
(c) The location of the Executive’s
employment will primarily be THM’s Fairbanks, Alaska office. The Executive will be
expected to travel as and when necessary, to such locations and for such period(s) of
time, as may be required to properly perform his duties. The Executive will work from the
THM Fairbanks office on a 5 days on, 2 days off schedule, with travel as required.
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(d) The
Executive agrees to cooperate fully with the Board and not engage directly or indirectly
in any activity that materially interferes with the performance of the Executive’s
duties hereunder. During the Employment Period, it shall not be a violation of this Agreement
for the Executive to:
(i) serve on any corporate, civic, or charitable
boards or committees (except for boards or committees of any business organization that competes
with the Company or its affiliates, including ITH, in any business in which they are regularly
engaged), so long as such service does not materially interfere with the performance of the
Executive's duties and responsibilities under this Agreement, as the Board in its reasonable
discretion shall determine,
(ii) manage personal investments, or
(iii) take up to 30 days of vacation annually,
at times to be mutually agreed between the Executive and the CEO, and reasonable absences
due to injury or illness as permitted by the general policies of the Company (with any unused
vacation days will either being carried over to the following year or paid out at the request
of the Executive).
(e) The Executive represents and covenants
to the Company that he is not subject or a party to any employment agreement, non-competition
covenant, non-solicitation agreement, nondisclosure agreement, or any other agreement, covenant,
understanding, or restriction that would prohibit the Executive from executing this Agreement
and fully performing his duties and responsibilities hereunder.
(f) The Executive acknowledges and agrees
that the Executive owes the Company and its affiliates, including each member of the ITH
Group, a duty of loyalty and that any obligations described in this Agreement are in addition
to, and not in lieu of, any obligations the Executive owes the Company and its affiliates
as a matter of law.
(g) During the Employment Period, the Executive
shall provide written notice to the Board of outside employment or performance of substantial
personal services for parties unrelated to the ITH Group. For the avoidance of doubt, any
such outside employment or performance of substantial personal services for parties unrelated
to the ITH Group is subject to the provisions of Section 11 hereof.
(h) The Executive agrees to abide by all applicable
ITH Group policies and procedures as may be in effect from time to time, including but not
limited to its employment policies. The Livengood Gold Project, including all work and camp
areas, is subject to a zero-tolerance drug and alcohol policy. The ITH Group has also adopted
and implemented a Site-Specific Safety and Health Plan. The Executive will be expected to
become fully familiar and comply with the provisions of this plan. Failure to comply with
these policies could result in disciplinary action, up to and including discharge for “Cause”
on and subject to the terms and conditions of this Agreement.
- 3 -
4. Compensation.
(a) Base Salary. During the Employment
Period, the Company shall pay to the Executive an annual base salary of $400,000 (the “Base
Salary”), payable bi-weekly in conformity with the Company's customary payroll practices.
During the Employment Period, the Compensation Committee of the Board (“Compensation
Committee”) will review and determine increases to the Executive’s salary from
time to time after the Effective Date, at its sole discretion.
(b) Annual Performance Bonus. The Executive
shall be eligible for an annual discretionary performance bonus with respect to each full
calendar year during the Employment Period (the “Annual Performance Bonus”),
beginning with the calendar year 2026, which shall, if earned, consist of a cash payment
targeted at 50% of the Base Salary. The Compensation Committee shall, on an annual basis
(at or near the beginning of each full calendar year during the Employment Period), establish
performance objectives for the Executive for the upcoming year (the “Performance Period”),
and will communicate such objectives to the Executive prior to the start of the applicable
Performance Period. For calendar year 2026, the performance objectives shall be established
after the Effective Date and the target bonus shall be pro-rated based on the percentage
of the calendar year completed. The amount, if any, of the Annual Performance Bonus to be
paid will be determined by the independent members of the Board, or the Compensation Committee
if designated this task by the Board, in each case acting in its sole and complete discretion
based on annual performance objectives. The bonus determination will be made as soon as administratively
practicable after the end the Performance Period, but in no event will an Annual Performance
Bonus be paid later than March 15th of the calendar year following the end
of the Performance Period. The Executive must be employed by the Company at the time of payment
of the Annual Performance Bonus in order to earn and be entitled to payment of the Annual
Performance Bonus, except as provided in Sections 7(a), 7(b) and 7(c).
(c) Initial Equity Awards. Within 30
days of the Effective Date, as approved by the Board and the Compensation Committee, in recognition
of the appointment of the Executive to the position of President and Chief Operating Officer,
the Executive will, subject to the receipt of any stock exchange approvals, receive an initial
equity grant of restricted share units (the “Equity Inducement RSUs”) pursuant
to the terms of the Inducement Equity Award Agreement attached hereto as Exhibit B (the
“2026 RSU Agreement”), with per share pricing and the number of shares to be
determined with reference to the weighted average of the prices at which the common shares
of ITH traded on the NYSE-American for the five trading days immediately preceding the date
of the grant. ITH shall file a Form S-8 to register all common shares to be granted
pursuant to the 2026 RSU Agreement prior to the earliest vesting date of any such shares.
(d) Long
Term Incentive Awards. The Executive will be eligible to receive, subject to approval
by the Board or the Compensation Committee, as applicable, annual incentive equity awards
targeted at 60% of the Base Salary subject to the terms and conditions of the 2006 Incentive
Stock Plan of ITH or such other equity plan approved by the stockholders of ITH (the “LTIP”).
Such annual incentive equity awards may be paid in the form of incentive stock options, deferred
share units, restricted share units or performance share units, and shall vest annually over
a four year period commencing on the first anniversary of the grant date, or as otherwise
determined by the Compensation Committee or the Board, as applicable, in its sole discretion.
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(e) Board Participation. In the event
that the Executive is appointed or elected to and serves on the Board of ITH during the Employment
Period, the Executive shall not be entitled to additional compensation.
5. Benefits. Subject to the terms and conditions
of this Agreement, the Executive shall be entitled to the following benefits during the Employment
Period:
(a) Reimbursement of Business Expenses
and Travel. The Company agrees to promptly reimburse the Executive for reasonable business-related
expenses, including travel expenses, incurred in the performance of the Executive’s
duties under this Agreement in accordance with Company policies. The Executive understands
and agrees that his position may entail frequent and significant travel to places outside
of Alaska.
(b) Benefit Plans and Programs. To
the extent permitted by applicable law, the Executive (and where applicable, his plan-eligible
dependents) shall be eligible to participate in all benefit plans and programs, including
improvements or modifications of the same, then being actively maintained by the Company
for the benefit of its executive employees (or for an employee population which includes
its executive employees), subject in any event to the eligibility requirements and other
terms and conditions of those plans and programs, including, without limitation:
(i) Medical insurance - Company pays 100% of
premiums for Premera Blue Cross Blue Shield of Alaska.
(ii) Health reimbursement arrangement (HRA)
- Premera-covered out-of-pocket amounts are reimbursed to the employee up to the current
annual policy period out-of-pocket maximum ($8,400 individual/$16,800 family). Company pays
100% of all qualified HRA reimbursements to the Plan Administrator, Rocky Mountain Reserve,
who provides reimbursement to the employee.
(iii) 401(k) plan - Sentinel Benefits administers
the current plan that offers both pre-tax (401k) and post-tax (Roth) deferrals. A Safe Harbor
Match is paid annually during first quarter for the prior year based on 3% of eligible gross
salary up to federal maximum (currently $360,000). Salary exclusions include stock option
exercises and severance
(iv) Dental
insurance, life insurance and disability insurance - Company pays 100% of Guardian coverage
for dental, vision, life (up to $100,000, age-dependent), and short-term disability (limited
coverage). Out-of-pocket costs under the Guardian policy for dental and vision are not eligible
for reimbursement under the HRA.
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The Company shall not, however, by reason
of this Section 5(b), have any obligation to institute, maintain, or refrain from changing, amending, or discontinuing any such
benefit plan or program.
6. Termination of Agreement and Employment.
(a) Automatic Termination in the Event
of Death. This Agreement shall automatically terminate in the event of the Executive’s
death. In the event of the Executive’s death, the Company shall pay to the Executive’s
estate, a portion of the Annual Performance Bonus, pro-rated based on the percent completion
of the calendar year, at the target level.
(b) Company's Right to Terminate. At
any time during the Employment Period, the Company shall have the right to terminate this
Agreement for any of the following reasons:
(i) upon the Executive's Disability (as defined
below),
(ii) for
Cause (as defined in Section 7); or
(iii) for any other reason whatsoever, in the
sole and complete discretion of the Company; provided that the Company will endeavour, but
will not commit, to provide as much advance notice as is possible in advance of such termination.
(c) Executive’s Right to Terminate.
At any time during the Employment Period, Executive will have the right to terminate this
Agreement with the Company for:
(i) Good Reason (as defined in Section 7);
or
(ii) for any other reason whatsoever, in the
sole and complete discretion of the Executive; provided that the Executive will provide 60
days advance written notice of his intention to resign.
(d) “Disability”. For the purposes
of this Agreement, “Disability”' means that the Executive has sustained sickness
or injury that renders the Executive incapable, with reasonable accommodation, of performing
the duties and services required of the Executive hereunder for a period of 120 consecutive
calendar days or a total of 150 calendar days during any 12-month period; provided, however,
that any termination based on Disability will be made in accordance with applicable law,
including the Americans with Disabilities Act, as amended.
(e) “Notices”. Any termination
of this Agreement by the Company under Section 6(b) or by the Executive under Section 6(c) shall
be communicated by a Notice of Termination to the other Party. A “Notice of Termination”
means a written notice that:
(i) indicates the specific termination provision
in this Agreement relied upon; and
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(ii) if the termination is by the Company for
Cause or by the Executive for Good Reason, sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Executive’s employment
under the provision so indicated. The Notice of Termination must specify the Executive's
Termination Date. The Termination Date may be as early as 14 calendar days after such Notice
is given but no later than 60 calendar days after such Notice is given, unless otherwise
agreed to by the Parties in writing or unless the termination is For Cause, in which case
the Termination Date may be immediate.
(f) The termination of this Agreement shall
also result in the contemporaneous termination of the Executive’s employment.
7. Severance Payments.
(a) Termination by the Company without
Cause. If the Company terminates this Agreement at any time during the Employment Period
pursuant to Section 6(b)(iii), then, except as set forth in Section 7(c), the Company
shall pay to the Executive in a lump sum, subject to all applicable withholdings, on the
60th day after the Termination Date, provided that the Executive has timely executed,
not revoked, and any period to revoke has lapsed, in a standard and reasonable form chosen
by the Company in its full discretion, a full general release of any claims arising from
the Agreement and the Executive’s employment in favor of the Company and its affiliates,
including but not limited to ITH, a severance payment equal to the sum of:
(i) one year's Base Salary; and
(ii) the prorated portion of his Annual Performance
Bonus for the Performance Period n which the termination occurs, determined as if all of
the relevant performance targets established for such year had been 100% obtained.
For the avoidance of doubt, notwithstanding
that the Termination Date may precede the date of payment of an Annual Performance Bonus, the Executive will continue to be entitled
to be paid the full amount of any Annual Performance Bonus earned but not yet paid for the Performance Period immediately preceding the
Performance Period in which the termination occurs.
In addition, in a situation entitling
the Executive to a severance payment under this Section 7(a), as at the close of business on the calendar day immediately prior
to the Termination Date, (a) 100% of any unvested Equity Inducement RSUs shall automatically vest and (b) if and to the extent
that the Executive holds any unvested equity-based compensation awards granted pursuant to the LTIP or any other stock option or equity
plans in place at such time (including without limitation any LTIP awards, stock options, restricted stock, restricted stock units, performance
units, and/or performance shares), such unvested equity-based compensation awards shall automatically vest on a prorated basis (calculated
in each case with reference to the number of days from and including the applicable grant date to but excluding the Termination Date);
provided that any performance-based awards will vest based on the degree of achievement of the relevant performance targets established
for such year through to the Termination Date, using pro-rated performance targets where necessary to account for the shortened performance
period.
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(b) Termination by Executive for Good Reason.
If the Executive terminates this Agreement at any time during the Employment Period pursuant
to Section 6(c)(i), then, except as set forth in Section 7(c), the Company shall
pay to the Executive in a lump sum, subject to all applicable withholdings, on the 60th
day after the Termination Date, provided that the Executive has timely executed, not revoked,
and any period to revoke has lapsed, in a standard and reasonable form chosen by the Company
in its full discretion, a full general release of any claims arising from the Agreement and
the Executive’s employment in favor of the Company and its affiliates, including but
not limited to ITH, a severance payment equal to the sum of:
(i) one year's Base Salary; and
(ii) the prorated portion of his Annual Performance
Bonus for the Performance Period n which the termination occurs, determined as if all of
the relevant performance targets established for such year had been 100% obtained.
For the avoidance of doubt, notwithstanding
that the Termination Date may precede the date of payment of an Annual Performance Bonus, the Executive will continue to be entitled
to be paid the full amount of any Annual Performance Bonus earned but not yet paid for the Performance Period immediately preceding the
Performance Period in which the termination occurs.
In addition, in a situation entitling
the Executive to a severance payment under this Section 7(b), as at the close of business on the calendar day immediately prior
to the Termination Date, (a) 100% of any unvested Equity Inducement RSUs shall automatically vest and (b) if and to the extent
that the Executive holds any unvested equity-based compensation awards granted pursuant to the LTIP or any other stock option or equity
plans in place at such time (including without limitation any LTIP awards, stock options, restricted stock, restricted stock units, performance
units, and/or performance shares), such unvested equity-based compensation awards shall automatically vest on a prorated basis (calculated
in each case with reference to the number of days from and including the applicable grant date to but excluding the Termination Date);
provided that any performance-based awards will vest based on the degree of achievement of the relevant performance targets established
for such year through to the Termination Date, using pro-rated performance targets where necessary to account for the shortened performance
period.
(c) Termination
by Executive after a
Change in Control.
If a Change in Control occurs and within six months of the Change in Control:
(i) the Company terminates this Agreement pursuant
to Section 6(b)(iii): or
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(ii) the Executive terminates this Agreement
during the Employment Period pursuant to Section 6(c)(i),
then Sections 7(a) and 7(b) shall
not apply and the Company shall pay to the Executive, in a lump sum, subject to all applicable withholdings, on the 60th day
after the Termination Date, provided that the Executive has timely executed, not revoked, and any period to revoke has lapsed, in a standard
and reasonable form chosen by the Company in its full discretion, a full general release of any claims arising from the Agreement and
the Executive’s employment in favor of the Company and its affiliates, including but not limited to ITH, a severance payment equal
to the sum of:
(i) one year’s Base Salary; and
(ii) the prorated portion of his Annual Performance
Bonus for the Performance Period n which the termination occurs, determined as if all of
the relevant performance targets established for such year had been 100% obtained.
For the avoidance of doubt, notwithstanding
that the Termination Date may precede the date of payment of an Annual Performance Bonus, the Executive will continue to be entitled
to be paid the full amount of any Annual Performance Bonus earned but not yet paid for the Performance Period immediately preceding the
Performance Period in which the termination occurs.
In addition, in a situation entitling
the Executive to a severance payment under this Section 7(c), as at the close of business on the calendar day immediately prior
to the Termination Date, (a) 100% of any unvested Equity Inducement RSUs shall automatically vest and (b) if and to the extent
that the Executive holds any unvested equity-based compensation awards granted pursuant to the LTIP or any other stock option or equity
plans in place at such time (including without limitation any LTIP awards, stock options, restricted stock, restricted stock units, performance
units, and/or performance shares), such unvested equity-based compensation awards shall automatically vest on a prorated basis (calculated
in each case with reference to the number of days from and including the applicable grant date to but excluding the Termination Date);
provided that any performance-based awards will vest based on the degree of achievement of the relevant performance targets established
for such year through to the Termination Date, using pro-rated performance targets where necessary to account for the shortened performance
period.
(d) Additional
Benefits. If the Company is required to pay to the Executive severance by, and subject
to, Sections 7(a), 7(b) or 7(c), or if the Executive is terminated pursuant to Section 6(b)(i),
then:
(i) Such severance shall be paid in addition
to any other payments the Company may make to the Executive (including, without limitation,
salary, fringe benefits, and expense reimbursements) in discharge of the Company’s
obligations to the Executive under this Agreement with respect to periods ending coincident
with or prior to the Termination Date.
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(ii) Subject to the Executive’s timely
and proper election of COBRA continuation coverage, and subject to the Company being eligible
to provide COBRA continuation coverage, the Company shall reimburse the Executive for COBRA
continuation coverage for twelve full months (or for the lesser duration of such COBRA coverage)
beginning with the month following the month in which the Termination Date occurs, such that
the Executive's cost of such COBRA coverage shall equal the cost, if any, that the Executive
would pay (on behalf of himself and his spouse and dependents, as applicable) under the Company’s
group health plan had the Executive not terminated; provided, that if substantially similar
group health coverage under another group health plan becomes available thereafter at substantially
the same cost to the Executive, the Executive’s spouse, or the Executive’s dependents
(as applicable), the Company’s reimbursement obligations under this Section 7(d)(ii) will
cease with respect to each person to whom such coverage becomes available. The Executive
shall notify the Company immediately upon group health coverage becoming available to the
Executive, the Executive’s spouse, or the Executive’s dependents.
(iii) Payments under Sections 7(a), 7(b) or
7(c), or payment under the disability insurance policy pursuant to Section 5(b)(iv),
shall be in lieu of any severance benefits otherwise due to the Executive under any severance
pay plan or program maintained by the Company that covers its employees and/or its executives.
(e) “Cause” means the occurrence
or existence, prior to occurrence of circumstances constituting Good Reason, of any of the
following events during the Employment Period:
(i) the Executive’s gross negligence or
material mismanagement in performing, or material failure or inability (excluding as a result
of death or Disability) to perform, the Executive’s duties and responsibilities as
described herein or as lawfully and reasonably directed by the Board;
(ii) the Executive having committed any act
of willful misconduct or material dishonesty (including but not limited to theft, misappropriation,
embezzlement, forgery, fraud, falsification of records, or wilful misrepresentation) against
the Company or any of its affiliates, including but not limited to ITH, or any such act that
results in, or could reasonably be expected to result in, material and irreparable injury
to the reputation, business or business relationships of the Company or any of its affiliates,
including but not limited to ITH;
(iii) the Executive's material breach (1) of
this Agreement (which, if capable of being remedied, is not remedied within 30 days of written
notice of such material breach), (2) of any fiduciary duty owed by the Executive to
the Company or its affiliates (including but not limited to ITH) or (3) of any workplace
policies applicable to the Executive (including but not limited to the Company’s Code
of Conduct and policy on workplace harassment) whether adopted on or after the Effective
Date (which, if capable of being remedied, is not remedied within 30 days of written notice
of such material breach);
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(iv) the Executive having been convicted of,
or having entered a plea bargain, a plea of nolo contendere or settlement admitting
guilt for, any felony, any crime of moral turpitude, or any other crime that could reasonably
be expected to have a material adverse impact on the Company’s or any of its affiliates’
reputations (including but not limited to ITH’s reputation); or
(v) the Executive having committed any material
violation of any federal law regulating securities (without having relied on the advice of
the Company’s attorney) or having been the subject of any final order, judicial or
administrative, obtained or issued by the Securities and Exchange Commission, for any securities
violation involving fraud, including, for example, any such order consented to by the Executive
in which findings of facts or any legal conclusions establishing liability are neither admitted
nor denied.
(f) “Good
Reason” means the occurrence, prior to the occurrence of any circumstance that
constitutes Cause within the meaning of Section 7(e)(ii) or the Executive receiving
written notice of any other circumstance that constitutes Cause which have not previously
been remedied, of any of the following events during the Employment Period without the Executive's
written consent:
(i) any material breach by the Company of this
Agreement or any reduction in the Executive’s compensation (it being understood, for
the avoidance of doubt, that the failure to earn all or any portion of an Annual Performance
Bonus shall not constitute a reduction in the Executive’s compensation);
(ii) any requirement by the Company that the
Executive relocate outside of the Fairbanks, Alaska metropolitan area;
(iii) the failure of any successor to assume
this Agreement not later than the date as of which it acquires substantially all of the assets
or businesses of the Company;
(iv) any material change in the Executive's
title, any material adverse change or reduction in the Executive’s responsibilities,
or duties or the Board directing the Executive to report to someone other than the CEO or
the Board; or
(v) the assignment to the Executive of any duties
materially inconsistent with his duties as President and Chief Operating Officer;
provided, however, that no Good Reason
shall have occurred unless the Executive provides the Board written notice of the initial occurrence of the event or condition described
in (i) through (v) immediately above within 120 days of the initial occurrence of such event or condition, the event or
condition is not remedied or cured within 30 days of the Board’s receipt of such written notice, and the Executive actually terminates
his employment with the Company within 180 days of the initial occurrence of such event or condition.
- 11 -
(g) “Change
in Control” means:
(i) any person or group of affiliated or associated
persons acquires more than 50% of the voting power of the Company;
(ii) the consummation of a sale of all or substantially
all of the assets of the Company;
(iii) the liquidation or dissolution of the
Company;
(iv) a majority of the members of the Board
are replaced during any 12-month period by Board members whose nomination or election was
not approved by the members of the Board at the beginning of such period (the “Incumbent
Board”) (provided that any subsequent members of the Board whose nomination or election
was previously approved by the Incumbent Board shall thereafter be also deemed to be a member
of the Incumbent Board); or
(v) the consummation of any merger, consolidation,
or reorganization involving the Company in which, immediately after giving effect to such
merger, consolidation or reorganization, less than 51% of the total voting power of outstanding
stock of the surviving or resulting entity is then “beneficially owned” (within
the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended)
in the aggregate by the stockholders of the Company immediately prior to such merger, consolidation
or reorganization. Notwithstanding the foregoing, in no event shall a Change in Control be
deemed to occur solely as a result of a sale of Company securities or debt as part of a bona
fide (A) capital raising transaction, provided that such transaction is not undertaken
in connection with a merger, consolidation, or reorganization, or (B) internal corporate
reorganization.
8. Parachute Payment.
(a) Anything in this Agreement to the contrary
notwithstanding, in the event it shall be determined that any payment or distribution by
the Company or another person to or for the benefit of the Executive (whether paid or payable
or distributed or distributable pursuant to the terms of this Agreement or otherwise) (a
“Payment”) including, by example and not by way of limitation, acceleration (by
the Company or otherwise) of the date of vesting or payment under any plan, program, arrangement
or agreement of the Company or another person, would be subject to the excise tax imposed
by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”)
or any interest or penalties with respect to such excise tax (such excise tax and any similar
tax imposed by state or local law, together with any such interest and penalties, shall be
referred to as the “Excise Tax”), then there shall be made a calculation that
compares (1) the Executive’s Net After-Tax Benefit (as defined below) if the Payments
are reduced to the minimum extent necessary so that no portion thereof shall be subject to
the Excise Tax (the “Reduced Amount”); and (2) the Executive’s Net
After-Tax Benefit of the Payments. If (2) exceeds (1), then the Payments shall not be
subject to reduction under this Section 8. However, if (1) exceeds (2), the Payments
to the Executive shall be reduced to the Reduced Amount. “Net After-Tax Benefit”
shall mean the sum of (x) all payments that the Executive receives or is entitled to
receive that are in the nature of compensation and contingent on a change in the ownership
or effective control of the Company or in the ownership of a substantial portion of the assets
of the Company within the meaning of Code Section 280G(b)(2) (either, a “Section 280G
Transaction”), as calculated in accordance with Code Section 280G less (y) the
amount of federal, state, local and employment taxes and Excise Tax (if any) imposed with
respect to such payments.
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(b) In the event that a reduction in Payments
is required pursuant to this Section 8, then, except as provided below with respect
to Payments that consist of health and welfare benefits, the reduction in Payments shall
be implemented by determining the “Parachute Payment Ratio” (as defined below)
for each Payment and then reducing the Payments in order beginning with the Payment with
the highest Parachute Payment Ratio. For Payments with the same Parachute Payment Ratio,
such Payments shall be reduced based on the time of payment of such Payments, with amounts
being paid furthest in the future being reduced first. For Payments with the same Parachute
Payment Ratio and the same time of payment, such Payments shall be reduced on a pro-rata
basis (but not below zero) prior to reducing Payments next in order for reduction. For purposes
of this Section 8, “Parachute Payment Ratio” shall mean a fraction, the
numerator of which is the value of the applicable Payment as determined for purposes of Code
Section 280G, and the denominator of which is the financial present value of such Parachute
Payment, determined at the date such payment is treated as made for purposes of Code Section 280G
(the “Valuation Date”). In determining the denominator for purposes of the preceding
sentence:
(i) present values shall be determined using
the same discount rate that applies for purposes of discounting payments under Code Section 280G;
(ii) the financial value of payments shall be
determined generally under Q&A 12, 13 and 14 of Treasury Regulation 1.280G-l; and
(iii) other reasonable valuation assumptions
as determined by the Company shall be used.
Notwithstanding the foregoing, Payments
that consist of health and welfare benefits shall be reduced after all other Payments, with health and welfare Payments being made furthest
in the future being reduced first. Upon any assertion by the Internal Revenue Service that any such Payment is subject to the Excise
Tax, the Executive shall be obligated to return to the Company any portion of the Payment determined by the Professional Services Firm
(as defined below) to be necessary to appropriately reduce the Payment so as to avoid any such Excise Tax.
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(c) All determinations required to be made
under this Section 8, including whether and when a Payment is cut back pursuant to Section 8(b) and
the amount of such cut-back, and the assumptions to be utilized in arriving at such determination,
shall be made by a professional services firm designated by the Board that is experienced
in performing calculations under Section 280G (the “Professional Services Firm”)
which shall provide detailed supporting calculations both to the Company and the Executive.
If the Professional Services Firm is serving as accountant or auditor for the individual,
entity or group effecting the Section 280G Transaction, the Board shall appoint another
qualified professional services firm to make the determinations required hereunder (which
accounting firm shall then be referred to as the Professional Services Firm hereunder). All
fees and expenses of the Professional Services Firm shall be borne solely by the Company.
9. Conflicts of Interest. The Executive
agrees that he shall promptly disclose to the Board any conflict of interest involving the
Executive upon the Executive becoming aware of such conflict. The Executive's ownership of
an interest not in excess of one percent in a business organization that competes with the
Company or its affiliates (including but not limited to ITH) shall not be deemed to constitute
a conflict of interest.
10. Confidentiality.
(a) The Company agrees to provide the Executive
valuable Confidential Information of the Company and its affiliates (including but not limited
to ITH) and of third parties who have supplied such information to the Company. In consideration
of such Confidential Information and other valuable consideration provided hereunder, the
Executive agrees to comply with this Section 10.
(b) “Confidential Information”
means, without limitation and regardless of whether such information or materials are expressly
identified as confidential or proprietary:
(i) any and all non-public, confidential or
proprietary information or work product of the Company or its affiliates (including but not
limited to ITH);
(ii) any information that gives the Company
or its affiliates (including but not limited to ITH) a competitive business advantage or
the opportunity of obtaining such advantage;
(iii) any information the disclosure or improper
use of which is reasonably expected to be detrimental to the interests of the Company or
its affiliates (including but not limited to ITH);
(iv) any trade secrets of the Company or its
affiliates (including but not limited to ITH); and
(v) any other non-public information regarding
the Company or any of its affiliates (including but not limited to ITH), or its or their
past, present or future, direct or indirect, potential or actual officers, directors, employees,
owners, or business partners, including but not limited to information regarding any of their
businesses, operations, assets, liabilities, properties, systems, methods, models, processes,
results, performance, investments, investors, financial affairs, future plans, business prospects,
acquisition or investment opportunities, strategies, business partners, business relationships,
contracts, contractual relationships, organizational or personnel matters, policies or procedures,
management or compensation matters, compliance or regulatory matters, as well as any technical,
seismic, industry, market or other data, studies or research, or any forecasts, projections,
valuations, derivations or other analyses, performed, generated, collected, gathered, synthesized,
purchased or owned by, or otherwise in the possession of, the Company or its affiliates (including
but not limited to ITH) or which the Executive has learned of through his employment with
the Company.
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Confidential Information also includes
any non-public, confidential or proprietary information about or belonging to any third party that has been entrusted to the Company
or its affiliates (including but not limited to ITH). Notwithstanding the foregoing, Confidential Information does not include any information
which is or becomes generally known by the public other than as a result of the Executive’s actions or inactions.
(c) Protection. In return for the Company’s
promise to provide the Executive with Confidential Information, the Executive promises:
(i) to keep the Confidential Information, and
all documentation, materials and information relating thereto, strictly confidential;
(ii) not to use the Confidential Information
for any purpose other than as required in connection with fulfilling his duties as President
and Chief Operating Officer for the benefit of the Company; and
(iii) to return to the Company all documents
containing Confidential Information in the Executive's possession upon separation from the
Company for any reason.
(d) Value and Security. The Executive
understands and agrees that all Confidential Information, and every portion thereof, constitutes
the valuable intellectual property of the Company, its affiliates (including but not limited
to ITH), and/or third parties, and the Executive further acknowledges the importance of maintaining
the security and confidentiality of the Confidential Information and of not misusing the
Confidential Information.
(e) Exceptions. Notwithstanding anything
in this Agreement, the Executive may disclose, without violating the terms of this Agreement,
Confidential Information that (a) is or becomes generally known to the public through
no action on my part; (b) is generally disclosed to third parties by the Company without
restriction on such third parties; (c) is approved for release by written authorization
of the Company; or (d) is required to be disclosed by law, regulation, order, decree
or legal process pursuant to Section 10(f). The Executive further understands that nothing
in this Agreement prevents Executive from disclosing information about the terms and conditions
of Executive’s employment with others to the extent expressly permitted by Section 7
of the National Labor Relations Act, or to the extent that such disclosure is protected under
the applicable provisions of law or regulation, including but not limited to “whistleblower”
statutes or other similar provisions that protect such disclosure, to the extent any such
rights are not permitted by applicable law to be the subject of nondisclosure obligations.
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(f) Disclosure
Required By Law. If the Executive is legally required to disclose any Confidential Information,
the Executive shall promptly notify the Company in writing of such request or requirement
so that the Company and/or its affiliates (including but not limited to ITH) may seek an
appropriate protective order or other relief. The Executive agrees to cooperate with and
not to oppose any effort by the Company and/or its affiliates (including but not limited
to ITH) to resist or narrow such request or to seek a protective order or other appropriate
remedy. In any case, the Executive will:
(i) disclose only that portion of the Confidential
Information that, according to the advice of the Executive’s counsel, is required to
be disclosed (and Executive’s disclosure of Confidential Information to the Executive’s
counsel in connection with obtaining such advice shall not be a violation of this Agreement);
(ii) use reasonable efforts (at the expense
of the Company) to obtain assurances that such Confidential Information will be treated confidentially;
and
(iii) promptly notify the Company and/or its
affiliates (including but not limited to ITH) in writing of the items of Confidential Information
so disclosed.
(g) Notwithstanding anything in this Agreement
to the contrary, pursuant to Defend Trade Secrets Act of 2016 (“DTSA”), 18 USC
§ 1833(b), the Executive agrees and understands that an individual may not be held liable
under any criminal or civil federal or state trade secret law for disclosure of a trade secret:
(i) made in confidence to a government official, either directly or indirectly, or to
an attorney, solely for the purpose of reporting or investigating a suspected violation of
law or (ii) in a complaint or other document filed in a lawsuit or other proceeding,
if such filing is made under seal. Additionally, an individual suing an entity for retaliation
based on the reporting of a suspected violation of law may disclose a trade secret to his
or her attorney and use the trade secret information in the court proceeding, so long as
any document containing the trade secret is filed under seal and the individual does not
disclose the trade secret except pursuant to court order. Nothing in this Agreement is intended
to conflict with 18 USC § 1833(b) or create liability for disclosures of trade
secrets that are expressly allowed by 18 USC § 1833(b). Unless expressly provided, the
DTSA does not authorize, or limit liability for, an act that is otherwise prohibited by law,
such as the unlawful access of material by unauthorized means.
Furthermore, nothing in this Agreement
prohibits or restricts the Executive (or the Executive’s attorney) from initiating communications directly with, responding to
an inquiry from, or providing testimony before the Securities and Exchange Commission (SEC), the Financial Industry Regulatory Authority
(FINRA), any other self-regulatory organization or any other federal or state regulatory authority regarding this Agreement or its underlying
facts or circumstances or a possible securities law violation.
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(h) Third-Party Confidentiality Agreements.
To the extent that the Company or its affiliates (including but not limited to ITH) possesses
any Confidential Information which is subject to any confidentiality agreements with, or
obligations to, third parties, the Executive shall comply with all such agreements or obligations
in full. The immediately preceding sentence shall apply only if the Company or any affiliate
(including but not limited to ITH) has provided the Executive with a copy of such agreements,
and the Executive may disclose such agreements and any related Confidential Information to
the Company’s attorneys and rely on their advice regarding compliance therewith.
(i) The Executive understands that nothing
in this Agreement shall in any way limit or prohibit the Executive from engaging in any Protected
Activity. For purposes of this Agreement, “Protected Activity” means filing a
charge or complaint with, reporting possible violations of law to, otherwise communicating
or cooperating with or participating in any investigation or proceeding that may be conducted
by any federal, state or local government agency, self-regulatory organization, or commission,
including the Securities and Exchange Commission, the Equal Employment Opportunity Commission,
the Occupational Safety and Health Administration, and the National Labor Relations Board
(“Government Agencies”), or taking other actions protected under federal or state
whistleblower law (including receiving a whistleblower award). The Executive understands
that in connection with such Protected Activity, the Executive is permitted to disclose documents
or other information as permitted by law, and without giving notice to, or receiving authorization
from, the Company. Notwithstanding, in making any such disclosures or communications, the
Executive agrees to take all reasonable precautions to prevent any unauthorized use or disclosure
of any information that may constitute Company Confidential Information to any parties other
than the Government Agencies. The Executive further understands that “Protected Activity”
does not include the disclosure of any Company attorney-client privileged communications.
In addition, the Executive hereby acknowledges that the Company has provided the Executive
with notice in compliance with the Defend Trade Secrets Act of 2016 regarding immunity from
liability for limited disclosures of trade secrets.
11. Agreement Not to Compete.
(a) The Executive acknowledges that, in the
course of the performance of the Executive’s duties and obligations under this Agreement,
the Executive will acquire access to Confidential Information and the Executive further acknowledges
that if the Executive were to compete against the Company or any of its affiliates (including
but not limited to ITH), or be employed or in any way involved with a person or company that
is competitive or in conflict with the Company or any of its affiliates (including but not
limited to ITH) during the 12 month period following the termination of the Executive’s
employment with the Company, the Company and its affiliates (including but not limited to
ITH) would suffer irreparable damages. Accordingly, the Executive will not, at any time or
in any manner, during the Employment Period or at any time within one (1) year following
the termination of the Executive’s employment for whatever reason, and notwithstanding
any alleged breach of this Agreement:
(i) directly or indirectly engage in any business
involving the acquisition, exploration, development or operation of any mineral property
which is competitive or in conflict with the business of the Company or any of its affiliates
(including but not limited to ITH);
- 17 -
(ii) accept employment or office with or render
services or advice to any other company, firm or individual, whether a competitor or otherwise,
engaged in the acquisition, exploration, development or operation of mineral property which
is competitive or in conflict with the business of the Company or any of its affiliates (including
but not limited to ITH);
(iii) solicit or induce any director, officer
or employee of the Company or of any its affiliates (including but not limited to ITH) to
end their association with the Company or any of its affiliates (including but not limited
to ITH);
(iv) directly or indirectly, on the Executive’s
own behalf or on behalf of others, solicit, divert or appropriate to or in favor of any person,
entity or corporation, any maturing business opportunity or any business of the Company or
of any of its affiliates (including but not limited to ITH); or
(v) directly or indirectly take any other action
inconsistent with the fiduciary relationship of a senior officer to his company, without
the prior written consent of the Board, which consent may be withheld in the Board’s
sole discretion.
(b) For this purpose of this Section 11,
a mineral property which is competitive or in conflict with the business of the Company or
any of its affiliates (including but not limited to ITH) means one:
(i) which is primarily prospective for gold,
and
(ii) any part of which lies within a horizontal
distance of twenty-five (25) kilometers from the outer boundaries of any mineral property
in which the Company or any of its affiliates (including but not limited to ITH) holds, or
has the right to acquire, an interest.
12. Compliance with Securities Laws. The
Executive acknowledges that ITH is a “reporting issuer” and a public company,
and that the common shares of ITH trade on various stock exchanges, including the Toronto
Stock Exchange in Canada and the NYSE-American in the United States. As a consequence of
this, all directors, officers and employees of the ITH Group are subject to securities laws
in both Canada and the United States. The Executive acknowledges that much of the information
which will be received by, or become known to, him during the Employment Period (whether
or not such information is also Confidential Information) is likely to be material and non-public
information with respect to the business, affairs, assets, mineral properties and/or status
(financial and otherwise) of the members of the ITH Group and may constitute material facts
or material changes (as those terms are defined in the Securities Act (B.C.)), and that the
provisions of applicable securities legislation, including, without limitation, section 86
of the Securities Act (British Columbia), prohibit:
(a) trading (which includes the exercise of
a previously granted stock option) in securities of a reporting issuer such as ITH by a person
who knows of a material fact or a material change with respect to that issuer that has not
been generally disclosed, or
- 18 -
(b) informing another person of a material
fact or a material change with respect to that reporting issuer before the material fact
or material change has been generally dis-closed, unless the giving of such information is
necessary in the course of business of the reporting issuer or of such person.
The Executive acknowledges that the
penalties for violation of such prohibitions are severe and that the carrying on of any such activities will materially and adversely
affect the ITH Group. Accordingly, the Executive will be required to take all necessary steps to fully comply with applicable legislation
regarding any trading in the securities of ITH and will fully and timely comply with all policies and procedures of the ITH Group in
that regard.
13. Withholdings. The Company may withhold
and deduct from any payments made or to be made pursuant to this Agreement:
(i) all federal, state, local and other withholdings
and similar taxes as may be required pursuant to any law or governmental regulation or ruling;
and
(ii) any deductions consented to in writing
by the Executive.
14. Severability. It is the desire of the
Parties that this Agreement be enforced to the maximum extent permitted by law, and should
any provision contained herein be held unenforceable by a court of competent jurisdiction
or arbitrator (pursuant to Section 16), the Parties hereby agree and consent that such
provision shall be reformed to create a valid and enforceable provision to the maximum extent
permitted by law; provided, however, if such provision cannot be reformed, it shall be deemed
ineffective and deleted from this Agreement without affecting any other provision of this
Agreement. Whenever possible, each provision or portion of any provision of this Agreement,
including but not limited to Section 11, shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision or portion of any provision
of this Agreement is held to be invalid, illegal or unenforceable in any respect under any
applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability
shall not affect any other provision or portion of any provision in such jurisdiction, and
this Agreement shall be reformed, construed and enforced in such jurisdiction as if such
invalid, illegal or unenforceable provision or portion of any provision had never been contained
herein. If, in any judicial or arbitral proceeding, a court or finder of fact refuses to
enforce any of such separate covenants (or any part thereof), the Executive and Company agree
that such unenforceable covenant (or such part) shall be eliminated from this Agreement to
the extent necessary to permit the remaining separate covenants (or portions thereof) to
be enforced. If the provisions of Section 11 are deemed to exceed the time, geographic
or scope limitations permitted by applicable law, the Executive and Company agree that such
provisions shall be reformed to the maximum time, geographic or scope limitations, as the
case may be, permitted by applicable law.
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15. Title and Headings; Construction. Titles
and headings to Sections hereof are for the purpose of reference only and shall in no way
limit, define or otherwise affect the provisions hereof. Any and all Exhibits referred to
in this Agreement are, by such reference, incorporated herein and made a part hereof for
all purposes. The words “herein”, “hereof”, “hereunder”
and other compounds of the word “here” shall refer to the entire Agreement and
not to any particular provision hereof. This Agreement shall be deemed drafted equally by
both the Parties. Its language shall be construed as a whole and according to its fair meaning.
Any presumption or principle that the language is to be construed against any Party shall
not apply.
16. Arbitration; Injunctive Relief; Attorneys’
Fees.
(a) Subject to subsection (b) below,
any dispute, controversy or claim between the Executive and the Company arising out of or
relating to this Agreement, the Executive’s employment with the Company, or the termination
of either (other than with respect to claims arising exclusively under one or more of the
Company’s employee benefit plans subject to ERISA) will be finally settled by arbitration
in Fairbanks, Alaska before, and in accordance with the rules for the resolution of
employment disputes then in effect at the American Arbitration Association (“AAA Rules”).
The AAA Rules are available online, free of charge, at www.adr.org/employment. Parties
or their representatives may also call AAA at 800.778.7879 to obtain a copy of the rules or
if they have questions about the arbitration process. This Section 16(a) and any
arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. Section 1 et
seq, as amended.
Notwithstanding the foregoing, claims
relating to (i) sexual assault or sexual harassment disputes arising under applicable law (unless Executive elects to arbitrate
these claims) but to the extent such a claim is joined or asserted in conjunction with other claims, Executive agrees that to fullest
extent permitted by law, such other claims shall be severed and subject to arbitration under this Section 16(a), and the non-covered
claim for sexual assault or sexual harassment shall be stayed pending full and final resolution of the covered claims by arbitration
or (ii) any other claims that, as a matter of law, parties cannot agree to arbitrate are not covered by this Section 16(a).
The arbitrator shall apply the substantive law (and the law of remedies, if applicable) of the state of Alaska, or federal law, or both,
as applicable to the claim(s) asserted.
The arbitrator’s award shall be
final and binding on both Parties. The arbitrator shall issue a written decision stating the factual findings and conclusions on which
the award is based, and shall have full authority to award all remedies that would be available in court. Any judgment upon the award
rendered by the arbitrator may be entered in any court having jurisdiction thereof.
The Federal Rules of Evidence shall
apply, except as modified by the arbitrator. In any such arbitration, the Parties may conduct discovery to the same extent as would be
permitted in a court of law. Any Party may file a motion to dismiss and/or a motion for summary judgment, and the arbitrator shall have
the authority to issue an award or partial award without conducting an arbitration hearing on the grounds that there is no claim stated
on which relief can be granted or that there is no genuine issue as to any material fact and that a party is entitled to judgment as
a matter of law, consistent with Rule 12 or Rule 56 of the Federal Rules of Civil Procedure. Upon the request of any Party,
the arbitrator will establish a briefing schedule and, if necessary, schedule an opportunity for oral argument prior to considering such
dispositive motions.
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(b) Notwithstanding subsection (a) above,
an application for emergency or temporary injunctive relief by either Party shall not be
subject to arbitration under this Section 16; provided, however, that the remainder
of any such dispute (beyond the application for emergency or temporary injunctive relief)
shall be subject to arbitration under this Section. The Executive acknowledges that the Executive’s
violation of Sections 9, 10 ands/or 11 of this Agreement shall cause irreparable harm to
the Company and its affiliates (including but not limited to ITH), the Executive agrees not
to contest that the Executive's violation of Sections 9, 10 ands/or 11 of this Agreement
will cause irreparable harm to the Company and its affiliates (including but not limited
to ITH), and the Executive agrees that the Company shall be entitled as a matter of right
to specific performance of the Executive’s obligations under Sections 9, 10 and 11
and an injunction, from any court of competent jurisdiction, restraining any violation or
further violation of such agreements by the Executive or others acting on his behalf, without
any showing of irreparable harm and without any showing that the Company and its affiliates
(including but not limited to ITH) does not have an adequate remedy at law. The right of
the Company and its affiliates (including but not limited to ITH) to injunctive relief shall
be cumulative and in addition to any other remedies provided by law or equity.
(c) Each Party shall share equally the cost
of the arbitrator and bear its own costs and attorneys’ fees incurred in connection
with any arbitration to the extent permitted by applicable law, unless a statutory claim
authorizing the award of attorneys’ fees is at issue, in which event the arbitrator
may award a reasonable attorneys’ fee in accordance with the jurisprudence of that
statute.
(d) Nothing in this Section 16 shall
prohibit a party to this Agreement from instituting litigation to enforce any arbitration
award.
(e) BY AGREEING TO THIS BINDING MUTUAL ARBITRATION
AGREEMENT, EXCEPT WHERE EXPLICITLY EXCLUDED IN THIS AGREEMENT, BOTH THE COMPANY AND EXECUTIVE
GIVE UP ALL RIGHTS TO A TRIAL BY JURY, AND ARE GIVING UP THEIR NORMAL RIGHTS OF APPEAL FOLLOWING
THE RENDERING OF A DECISION, EXCEPT AS THE FEDERAL ARBITRATION ACT AND APPLICABLE FEDERAL
LAW ALLOW FOR JUDICIAL REVIEW OF ARBITRATION PROCEEDINGS.
(f) Notwithstanding anything to the contrary,
this Section 16 does not prevent Executive from filing a complaint or charge with the
National Labor Relations Board, or the Equal Employment Opportunity Commission, or any similar
federal or state administrative agency, or from reporting suspected securities laws violations
to the Securities and Exchange Commission or other regulatory authority.
- 21 -
17. Governing Law. THIS AGREEMENT WILL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ALASKA, WITHOUT
REFERENCE TO PRINCIPLES OF CONFLICT OF LAWS. THE EXCLUSIVE VENUE FOR THE RESOLUTION OF ANY
DISPUTE RELATING TO THIS AGREEMENT OR THE EXECUTIVE'S EMPLOYMENT (THAT IS NOT SUBJECT TO
ARBITRATION UNDER SECTION 16 FOR ANY REASON) SHALL BE IN THE STATE AND FEDERAL COURTS
LOCATED IN FAIRBANKS, ALASKA AND THE PARTIES HEREBY EXPRESSLY CONSENT TO THE JURISDICTION
OF THOSE COURTS.
18. Entire Agreement and Amendment. This
Agreement contains the entire agreement of the Parties with respect to the Executive's employment
and the other matters covered herein (except to the extent that other agreements are specifically
referenced herein); moreover, this Agreement supersedes all prior and contemporaneous agreements
and understandings, oral or written, between the Parties hereto concerning the subject matter
hereof and thereof. This Agreement may be amended, waived or terminated only by a writen
instrument executed by both Parties.
19. Survival of Certain Provisions. Wherever
appropriate to the intention of the Parties, the respective rights and obligations of the
Parties, including, but not limited to, the rights and obligations set forth in Sections
6 through 16 hereof, shall survive any termination or expiration of this Agreement for any
reason.
20. Waiver of Breach. No waiver by either
pay hereto of a breach of any provision of this Agreement by the other Party, or of 1compliance
with any condition or provision of this Agreement to be performed by such other Party, will
operate or be construed as a waiver of any subsequent breach by such other Party or any similar
or dissimilar provision or condition at the same or any subsequent time. The failure of either
Party hereto to take any action by reason of any breach will not deprive such Party of the
right to take action at any time while such breach continues.
21. Assignment. Neither this Agreement
nor any rights or obligations hereunder shall be assignable or otherwise subject to hypothecation
by the Executive (except by will or by operation of the laws of intestate succession) or
by the Company, except that the Company shall assign this Agreement to any successor (whether
by merger, purchase or otherwise) to all or substantially all of the equity, assets or businesses
of the Company, if such successor expressly agrees to assume the obligations of the Company
hereunder.
22. Notices. Notices provided for in this
Agreement shall be in writing and shall be deemed to have been duly received:
(a) when delivered in person or sent by facsimile
transmission;
(b) on the first business day after such notice
is sent by air express overnight courier service; or
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(c) on the third business day following deposit
in the United States mail, registered or certified mail, return receipt requested, postage
prepaid and addressed,
to the following address, as applicable:
If to Company, addressed
to:
International Tower Hill Mines Ltd.
Suite 200 – 506 Gaffney Road
Fairbanks, Alaska 99701
Attention: The Board
If to the Executive,
addressed to the address set forth below the Executive’s name on the execution page hereof;
or to such other address as either
Party may have furnished to the other Party in writing in accordance with this Section 22.
23. Counterparts. This Agreement may be
executed in any number of counterparts, each of which when so executed and delivered shall
be an original, but all such counterparts shall together constitute one and the same instrument.
Each counterpart may consist of a copy hereof containing multiple signature pages, each signed
by one Party, but together signed by both Parties.
24. Definitions. The Parties agree that,
as used in this Agreement, the following terms shall have the following meanings:
(a) an “affiliate” of a person
shall mean any person directly or indirectly controlling, controlled by, or under common
control with, such person;
(b) the terms “controlling, controlled
by, or under common control with” shall mean the possession, directly or indirectly,
of the power to direct or influence or cause the direction or influence of management or
policies (whether through ownership of securities or other ownership interest or right, by
contract or otherwise) of a person; and
(c) the term “person” shall mean
a natural person, partnership (general or limited), limited liability Company, trust, estate,
association, corporation, custodian, nominee, or any other individual or entity in its own
or any representative capacity, in each case, whether domestic or foreign.
25. Internal Revenue Code
Section 409A.
(a) If at the time of the Executive’s
separation from service:
(i) the Executive is a specified employee (within
the meaning of Section 409A of the Code, and using the identification methodology selected
by the Company from time to time); and
- 23 -
(ii) the Company makes a good faith determination
that an amount payable hereunder constitutes deferred compensation (within the meaning of
Section 409A of the Code), the payment of which is required to be delayed pursuant to
the six-month delay rule set forth in Section 409A of the Code in order to avoid
additional taxes or interest under Section 409A of the
Code,
then the
Company will not pay such amount on the otherwise scheduled payment date but will instead pay it in a lump sum on the first to occur
of (x) the first business day after such six-month period, (y) the Executive's death, or (z) such other date as
will not cause such payment to be subject to tax or interest under Code Section 409A.
(b) It is the intention of the Parties that
payments or benefits payable under this Agreement not be subject to the additional tax or
interest imposed pursuant to Code Section 409A. To the extent such potential payments
or benefits could become subject to Code Section 409A, the Parties shall cooperate to
amend this Agreement with the goal of giving the Executive the economic benefits described
herein in a manner that does not result in such tax being imposed. The Executive shall, at
the request of the Company, take any action (or refrain from taking any action), required
to comply with any correction procedure promulgated pursuant to Code Section 409A. In
no event shall the Company be liable to the Executive for any taxes, penalties, or interest
that may be due as a result of the application of Code Section 409A.
(c) For purposes of Code Section 409A,
each payment made under this Agreement shall be treated as a separate payment, and the right
to a series of installment payments under this Agreement is to be treated as a right to a
series of separate payments.
(d) For purposes of determining the timing
of any payment of severance compensation, the Executive will be deemed to have a termination
of employment only upon a “separation from service” within the meaning of Code
Section 409A.
(e) Any amount that the Executive is entitled
to be reimbursed under this Agreement will be reimbursed to the Executive as promptly as
practical, and in any event not later than the last day of the calendar year following the
year in which the expenses were incurred.
(f) The Executive's termination of his employment
for Good Reason is intended to be a separation from service for good reason as described
in Treas. Reg. § 1.409A-1(n)(2) and this Agreement shall be interpreted and construed
accordingly.
(g) For purposes of this Agreement, each payment
of severance compensation is intended to be excepted from Code Section 409A to the maximum
extent provided under Code Section 409A as follows:
(i) each payment that is scheduled to be made
following the Executive's termination of employment and within the applicable 2 1/2 month
period specified in Treas. Reg. § 1.409A(b)(4) is intended to be excepted under
the short-term deferral exception as specified in Treas. Reg.§ 1.409A-1(b)(4); and
- 24 -
(ii) each payment that is not otherwise excepted
under the short-term deferral exception is intended to be excepted under the involuntary
separation pay exception as specified in Treas. Reg. § 1.409A-1(b)(9)(iii) or the
exception for limited payments described in Treas. Reg. § 1.409A-1(b)(9)(v)(D).
26. Employment at Will. The Executive agrees
that, by signing below, he agrees that he is an employee at will and just as he is free to
terminate his employment at any time, for any reason, the Company is also free to terminate
his employment at any time, for any reason.
27. Currency. All dollar amounts referred
to in this Agreement and in the attached Exhibits are expressed in United States dollars.
SIGNATURE PAGE FOLLOWS
- 25 -
IN WITNESS WHEREOF, the Executive and the Company
have executed this Agreement to be effective for all purposes as
of the Effective Date.
EXECUTIVE:
Dated: July 27, 2026
/s/ Shane Parrow
Shane Parrow
[Address]
THE COMPANY:
Dated: July 27, 2026
By:
/s/ Karl Hanneman
Karl Hanneman
President, Tower Hill Mines Inc.
Managing Member
Exhibit A
Description of Duties and Responsibilities
of
President and Chief Operating Officer
The President and Chief Operating Officer (“President
and COO”) of International Tower Hill Mines, Ltd. shall be responsible for leading the operational, technical, environmental,
and administrative activities required to advance the Livengood Gold Project safely, efficiently, and in alignment with ITH’s strategic
objectives. The President and COO provides executive leadership across project execution, operational planning, stakeholder engagement,
budgeting, governance support, and organizational performance while fostering a culture of safety, accountability, transparency, and
environmental stewardship.
The President and COO’s responsibilities
shall include:
Safety Leadership and Management
· Championing
a strong safety culture across all ITH Group activities and promote continuous improvement
in health and safety performance.
· Leading
the development and implementation of the ITH Group health and safety, programs to ensure
that they meet or exceed applicable legal requirements and corporate standards;
· Ensuring
employees, contractors, consultants, and visitors have access to and understand and comply
with the ITH Group health and safety plans and applicable health and safety requirements.
· Monitoring
safety performance metrics and implementing corrective actions where necessary.
Environmental Leadership and Compliance
· Leading
the development and implementation of the ITH Group’s health, safety, environmental,
and regulatory compliance programs to ensure that they meet or exceed applicable legal requirements
and corporate standards;
· Leading
the development and execution of environmental permitting strategies that support the ITH
Group’s reputation and project permitting objectives.
· Providing
leadership in environmental stewardship and sustainable development practices.
· Ensuring
that all employees, contractors, and consultants have access to and understand and comply
with the ITH Group’s environmental policies and management plans.
· Supporting
environmental risk management, monitoring, reporting, and continuous improvement initiatives.
Operations and Project Management
· Leading
the operational and technical activities necessary to advance the Livengood Gold Project
in alignment with approved strategic and business objectives.
· Establishing
project priorities, objectives, execution strategies, schedules, and performance expectations.
· Ensuring
effective management of project scope, quality, timelines, costs, and operational risks.
· Overseeing
preparation and delivery of monthly, quarterly, and annual operational reports for the Board
in collaboration with the CEO.
· Providing
leadership in the recruitment, development, supervision, and performance management of project
personnel and operational teams.
· Identifying,
evaluating, negotiating with, and managing contractors, consultants, and technical service
providers required to support project execution.
· Promoting
operational excellence through effective planning, accountability systems, and cross-functional
coordination.
Financial and Strategic Management
· Developing
annual operating and capital budgets in collaboration with the CEO.
· Authorizing
expenditures and commitments within approved authority limits.
· Monitoring
financial performance against budget and provide variance analysis and corrective action
recommendations.
· Supporting
long-range planning, project development strategies, and operational forecasting.
· Contributing
to the development and execution of the ITH Group’s overall business plan and strategic
initiatives.
Stakeholder, Government, and Investor Relations
· Developing
and protecting effective relationships with key stakeholders, including local communities,
and State and Federal government agencies in Alaska, to support the ITH Group’s permitting
and operational objectives;
· Leading
the development and execution of public affairs and stakeholder engagement strategies that
support the ITH Group’s reputation and project permitting and operational objectives.
· Supporting
the CEO and Investor & Stakeholder Relations team in preparing presentations, technical
updates, and corporate messaging for investors, analysts, and external stakeholders.
Corporate Governance and Board
· Serving
by appointment on the Board; provided that no additional compensation will be provided for
such Board service.
· Serving
as President of Tower Hill Mines, Inc.
· Supporting
the CEO in corporate governance matters and implementation of Board-directed initiatives.
· Assisting
with preparation of materials and reporting for the Board and Board committees, including
the Technical Committee.
Additional Responsibilities
· Performing
other duties and responsibilities as assigned by the CEO or Board.
Exhibit B
Equity Award Agreement
[See attached]
INTERNATIONAL TOWER HILL MINES LTD.
INDUCEMENT AWARD AGREEMENT FOR RESTRICTED SHARE UNITS
This Inducement Award Agreement
for Restricted Share Units (this “Agreement”) is made and entered into as of July 27, 2026 (the “Grant
Date”) by and between International Tower Hill Mines Ltd. (the “Company”) and Shane Parrow (the “Grantee”).
WHEREAS,
the Board of Directors of the Company (the “Board”) and its Compensation Committee (the “Committee”)
desires to award US$650,000 of restricted share units (“Units”) to the Grantee pursuant to (1) the inducement
grant exception under Section 711(a) of the NYSE American Company Guide and (2) Section 613(c) of the TSX Company
Manual, each of which permits, under specified circumstances, the issuance of equity-based compensation without shareholder approval
to induce someone to enter into an employment arrangement with the Company.
AND
WHEREAS, the award of the Units shall be subject to approval by the NYSE American and the Toronto Stock Exchange and are not
being issued pursuant to the Company’s 2017 Deferred Share Unit Incentive Plan or any other equity incentive plan of the Company.
NOW,
THEREFORE, in consideration of the mutual covenants and promises hereinafter set forth and for other good and valuable consideration,
the parties hereto hereby mutually covenant and agree as follows:
1. Grant
of Restricted Share Units.
(a) The
Grantee acknowledges that the award of Units under this Agreement satisfies in full the obligation of the Company to grant US$650,000
of restricted share units to the Grantee pursuant to the employment agreement dated July 27, 2026 (as such agreement may be amended
from time to time, the “Employment Agreement”) by and among the Company, Tower Hill Mines (US) LLC (a wholly-owned
subsidiary of the Company and the employer of record of the Grantee. In the event of any conflict between the terms of this Agreement
and the terms of the Employment Agreement, the terms of the Employment Agreement shall prevail.
(b) As
of the Grant Date, the Company hereby issues to the Grantee an award of 312,500 Units. Each Unit represents the right to receive one
common share of the Company (each, a “Common Share”) or, at the discretion of the Company, the cash equivalent thereof
on and subject to the terms and conditions set forth in this Agreement. The Units shall be credited to a bookkeeping account maintained
for the Grantee on the books and records of the Company and until settled shall continue for all purposes to be part of the general assets
of the Company.
2. Consideration.
The grant of the Units is made in consideration of the services to be rendered by the Grantee to the Company.
3. Vesting.
(a) Subject
to early vesting pursuant to and in accordance with the Employment Agreement, and except as otherwise provided herein, provided that
the Grantee remains in Continuous Service through the applicable vesting date, the Units will vest in accordance with the following schedule:
Vesting
Date
Number
of Units That Vest
First anniversary of the
Grant Date
1/3 of the Units
Second anniversary of the
Grant Date
1/3 of the Units
Third anniversary of the
Grant Date
1/3 of the Units
Once vested pursuant to and in accordance with
this Agreement or the Employment Agreement, the applicable number of Units become “Vested Units.” For purposes of
this Agreement, “Continuous Service” means the Grantee’s continued employment with Tower Hill Mines (US) LLC
or any of its affiliates pursuant to the Employment Agreement.
(b) Subject
to early vesting pursuant to and in accordance with the Employment Agreement, if the Grantee’s Continuous Service terminates for
any reason at any time before all of his Units have vested pursuant to and in accordance with this Agreement or the Employment Agreement,
all Units other than Vested Units shall be automatically forfeited upon such termination of Continuous Service and the Company shall
not have any further obligations in respect of such Units to the Grantee under this Agreement.
4. Restrictions.
Subject to Section 11 hereof, the Units or the rights relating thereto may not be assigned, alienated, pledged, attached, sold or
otherwise transferred or encumbered by the Grantee. Any attempt to assign, alienate, pledge, attach, sell or otherwise transfer or encumber
the Units or the rights relating thereto shall be wholly ineffective and, if any such attempt is made, the Units will be forfeited by
the Grantee and all of the Grantee’s rights to such Units shall immediately terminate without any payment or consideration by the
Company.
5. Rights
as Shareholder; Dividend Equivalents.
(a) The
Grantee shall not have any rights of a shareholder with respect to the Common Shares underlying the Units unless and until the Units
vest and are settled by the issuance of such Common Shares. Only upon and following the issuance of Common Shares on settlement of the
Units will the Grantee be the record owner of the Common Shares underlying the Units or otherwise be entitled to any rights of a stockholder
of the Company (including voting rights or the right to receive dividends) in respect of such Common Shares.
(b) For
the avoidance of doubt, the Grantee shall not be entitled to any dividend equivalents with respect to the Units to reflect any dividends
payable on Common Shares.
6. Settlement
of Units. Subject to Section 9 hereof, promptly following each vesting date, and in any event no later than thirty (30)
days following each vesting date, the Company shall, at the discretion of the Board, deliver to the Grantee the number of Common Shares
equal to the number of Units that vested on such date or cash in an amount equivalent to the Fair Market Value of such Common Shares
on the applicable vesting date (or any combination Common Shares and cash as may be determined in the sole discretion of the Company).
For purposes of this Agreement, the “Fair Market Value” of a Common Share, as at any date, means the weighted average of
the prices at which the Shares traded on the TSX (or, if the Shares are not then listed and posted for trading on the TSX or are then
listed and posted for trading on more than one stock exchange, on such stock exchange on which the majority of the trading volume of
the Common Shares occurs) for the five trading days on which the Common Shares traded on such exchange immediately preceding such date.
In the event that the Common Shares are not listed and posted for trading on any stock exchange, the Fair Market Value of a Common Share
shall be the fair market value of a Common Share as determined by the Board in its discretion, acting reasonably and in good faith.
7. Investment
Representations. In connection with the issuance of the Common Shares, Grantee represents to the Company the following:
(a) The
Grantee acknowledges and understands that the Common Shares have not been registered under the U.S. Securities Act of 1933 (the “Securities
Act”) and must be held indefinitely unless they are subsequently registered under the Securities Act or an exemption from such
registration is available. Grantee further acknowledges and understands that the Company is under no obligation to register the securities.
Grantee understands that the certificate(s) evidencing the securities will be imprinted with a legend which prohibits the transfer
of the securities unless they are registered or such registration is not required in the opinion of counsel for the Company.
(b) The
Grantee is familiar with the provisions of Rule 144 promulgated under the Securities Act and understands that in the event all of
the applicable requirements of Rule 144 are not satisfied, registration under the Securities Act, compliance with Regulation A,
or some other registration exemption will be required; and that, notwithstanding the fact that Rule 144 is not exclusive, the Staff
of the Securities and Exchange Commission has expressed its opinion that persons proposing to sell private placement securities other
than in a registered offering and otherwise than pursuant to Rule 144 will have a substantial burden of proof in establishing that
an exemption from registration is available for such offers or sales, and that such persons and their respective brokers who participate
in such transactions do so at their own risk.
2
8. No
Impact on Other Benefits; No Employment Rights. The value of the Grantee’s Units is not part of his normal or
expected compensation for purposes of calculating any severance, retirement, welfare, insurance or similar employee benefit. Nothing
in this Agreement shall affect in any manner whatsoever the right or power of the Company, or an affiliate of the Company, to terminate
Grantee’s employment or consulting relationship, for any reason, with or without cause.
9. Adjustments.
In the event that (a) there is any change in the Common Shares through subdivision, consolidation, reclassification, amalgamation,
merger or otherwise or (b) as a result of any recapitalization, merger, consolidation or other transaction, the Common Shares are
converted into or exchangeable for any other securities or property, the Company may make such adjustments to any outstanding Units as
the Board may, in its discretion, acting reasonably and in good faith, consider appropriate in the circumstances to prevent dilution
or enlargement of the rights granted to the Grantee under this Agreement and/or to provide for the Grantee to receive and accept such
other securities or property in lieu of Common Shares as the Board in its discretion considers fair and appropriate in the circumstances,
and the Grantee shall be bound by any such determination.
10. Tax
Liability and Withholding.
(a) The
Grantee acknowledges that the Units shall be taxable compensation upon settlement. The Company may take any action the Company deems
necessary, acting reasonably and in good faith, to satisfy any requirements for withholding of all applicable federal, state or local
income or employment tax or assessment. The Grantee may satisfy any withholding obligation by any of the following means, or by a combination
of such means: (i) tendering a cash payment; (ii) authorizing the Company to withhold Common Shares from the Common Shares
otherwise issuable or deliverable to the Grantee as a result of the vesting of the Units; provided, however, that no Common Shares shall
be withheld with a value exceeding the maximum amount of tax required to be withheld by law; or (iii) delivering to the Company
previously owned and unencumbered Common Shares.
(b) Notwithstanding
any action the Company takes with respect to any or all income tax, social insurance, payroll tax, or other tax-related withholding (“Tax-Related
Items”), the ultimate liability for all Tax-Related Items is and remains the Grantee’s responsibility and the Company
(i) makes no representation or undertakings regarding the treatment of any Tax-Related Items in connection with the grant, vesting
or settlement of the Units or the subsequent sale of any shares; and (ii) does not commit to structure the Units to reduce or eliminate
the Grantee’s liability for Tax-Related Items.
11. Death
of the Grantee. Any distribution or delivery to be made to the Grantee under this Agreement due to Grantee’s death after vesting
but before settlement will be made to the administrator or executor of the Grantee’s estate. Any such administrator or executor
must furnish the Company with (a) written notice of his or her status as transferee, and (b) evidence satisfactory to the Company
to establish the validity of the transfer and compliance with any applicable laws pertaining to said transfer.
12. Compliance
with Law. The issuance and transfer of Common Shares shall be subject to compliance by the Company and the Grantee with all
applicable requirements of federal, state and provincial securities laws and with all applicable requirements of any stock exchange on
which the Common Shares may be listed. Notwithstanding any other provision of this Agreement, no Common Shares shall be issued to the
Grantee unless and until any then applicable requirements of federal, state and provincial laws and regulatory agencies have been fully
complied with to the satisfaction of the Company.
13. Specific
Enforcement. The Grantee expressly acknowledges that the Company may be irreparably damaged if this Agreement is not specifically
enforced. Upon a breach or threatened breach of the terms, covenants or conditions of this Agreement by the Grantee, the Company shall,
in addition to all other remedies, be entitled to apply for a temporary or permanent injunction, or a decree for specific performance,
in accordance with the provisions hereof.
14. Notices.
Any notice required to be delivered to the Company under this Agreement shall be in writing and addressed to the Secretary of the Company
at the Company’s principal corporate offices. Any notice required to be delivered to the Grantee under this Agreement shall be
in writing and addressed to the Grantee at the Grantee’s address as shown in the records of the Company. Either party may designate
another address in writing (or by such other method approved by the Company) from time to time.
3
15. Governing
Law. This Agreement will be construed and interpreted in accordance with the internal laws of the State of Alaska without
regard to conflict of law principles.
16. Administration.
The Company or Committee shall have discretion to administer, interpret, and implement this Agreement. The Company or Committee’s
decisions and determinations (including determinations of the meaning and reference of terms used in this Agreement) shall be conclusive
upon all persons.
17. Successors
and Assigns. The Company may assign any of its rights under this Agreement. This Agreement will be binding upon and inure
to the benefit of the successors and assigns of the Company. Subject to the restrictions on transfer set forth herein, this Agreement
will be binding upon the Grantee and the Grantee’s beneficiaries, executors, administrators and the person(s) to whom the
Units may be transferred by will or the laws of descent or distribution.
18. Severability.
The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, and each provision of this Agreement shall be severable and enforceable to the extent permitted by law.
19. Discretionary
Nature of Award. The grant of the Units in this Agreement does not create any contractual right or other right to receive
any additional Units or other awards in the future. Future awards, if any, will be at the sole discretion of the Company.
20. Entire
Agreement and Amendments. this Agreement (together with the Employment Agreement) constitutes the entire agreement of the parties
with respect to the subject matter hereof and neither this Agreement (or the Employment Agreement) nor any provision hereof (or thereof)
may be waived, modified, amended or terminated except by a written agreement signed by the parties hereto. No waiver of any breach or
default hereunder shall be considered valid unless in writing, and no such waiver shall be deemed a waiver of any subsequent breach or
default of the same or similar nature.
21. Section 409A.
In accordance with the Employment Agreement, this Agreement is intended to comply with Section 409A of the Internal Revenue Code
of 1986, as amended from time to time (the “Code”) or an exemption thereunder and shall be construed and interpreted
in a manner that is consistent with the requirements for avoiding additional taxes or penalties under Section 409A of the Code.
Notwithstanding the foregoing, the Company makes no representations that the payments and benefits provided under this Agreement comply
with Section 409A of the Code and in no event shall the Company be liable for all or any portion of any taxes, penalties, interest
or other expenses that may be incurred by the Grantee on account of non-compliance with Section 409A of the Code.
22. Miscellaneous.
(a) Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which together will constitute one
and the same instrument. Counterpart signature pages to this Agreement transmitted by facsimile transmission, by electronic mail
in portable document format (.pdf), or by any other electronic means intended to preserve the original graphic and pictorial appearance
of a document, will have the same effect as physical delivery of the paper document bearing an original signature.
(b) Acceptance.
The Grantee hereby acknowledges receipt of this Agreement. The Grantee has read and understands the terms and provisions hereof, and
accepts the Units subject to all of the terms and conditions of this Agreement.
4
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
INTERNATIONAL
TOWER HILL MINES LTD.
By:
Name:
Title:
GRANTEE:
Shane Parrow
5
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Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as soliciting material pursuant to Rule 14a-12 under the Exchange Act.
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