exv10w1w2



 






Exhibit 10.1.2




AGREEMENT BETWEEN




CANYON RESOURCES CORPORATION




AND




JAMES K. B. HESKETH




MARCH 1, 2005




 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 	 	 
	1.	 	Certain Definitions	 	 	1	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	(a)	 	“Effective Date”	 	 	1	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	(b)	 	“Change of Control Period”	 	 	1	 
	 
	 	 	 	 	 	 	 	 	 	 
	2.	 	Change of Control	 	 	1	 
	 
	 	 	 	 	 	 	 	 	 	 
	3.	 	Employment Period	 	 	2	 
	 
	 	 	 	 	 	 	 	 	 	 
	4.	 	Terms of Employment	 	 	2	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	(a)	 	Position and Duties	 	 	2	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	(b)	 	Compensation	 	 	2	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	 	(i)
	 	Base Salary
	 	 	2	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	 	(ii)
	 	Incentive, Savings and Retirement Plans
	 	 	2	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	 	(iii)
	 	Welfare Benefit Plans
	 	 	2	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	 	(iv)
	 	Expenses
	 	 	3	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	 	(v)
	 	Fringe Benefits
	 	 	3	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	 	(vi)
	 	Vacation
	 	 	3	 
	 
	 	 	 	 	 	 	 	 	 	 
	5.	 	Termination of Employment	 	 	3	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	(a)	 	Death or Disability	 	 	3	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	(b)	 	Cause	 	 	3	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	(c)	 	Good Reason	 	 	3	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	(d)	 	Notice of Termination	 	 	4	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	(e)	 	Date of Termination	 	 	4	 
	 
	 	 	 	 	 	 	 	 	 	 
	6.	 	Obligations of the Company upon Termination	 	 	5	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	(a)	 	Death	 	 	5	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	(b)	 	Disability	 	 	5	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	(c)	 	Cause; Other than for Good Reason	 	 	5	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	(d)	 	Good Reason; Other than For Cause or Disability	 	 	5	 
	 
	 	 	 	 	 	 	 	 	 	 
	7.	 	Non-exclusivity of Rights	 	 	6	 
	 
	 	 	 	 	 	 	 	 	 	 
	8.	 	Full Settlement	 	 	6	 
	 
	 	 	 	 	 	 	 	 	 	 
	9.	 	Confidential Information	 	 	6	 
	 
	 	 	 	 	 	 	 	 	 	 
	10.	 	Successors	 	 	6	 
	 
	 	 	 	 	 	 	 	 	 	 
	11.	 	Miscellaneous	 	 	7	 






 









 






AGREEMENT




          AGREEMENT by and between Canyon Resources Corporation, a Delaware corporation (the “Company”)
and James K. B. Hesketh (the “Executive”), dated as of the 1st day of March 2005.



          The Board of Directors of the Company (the “Board”), has determined that it is in the best
interests of the Company and its shareholders to assure that the Company will have the continued
dedication of the Executive, notwithstanding the possibility, threat or occurrence of a Change of
Control (as defined below) of the Company. The Board believes it is imperative to diminish the
inevitable distraction of the Executive by virtue of the personal uncertainties and risks created
by a pending or threatened Change of Control, and to provide the Executive with compensation and
benefits arrangements upon a Change of Control which ensure that the compensation and benefits
expectations of the Executive will be satisfied and which are competitive with those of other
corporations. Therefore, in order to accomplish these objectives and to adequately reward
Executive, the Board has caused the Company to enter into this Agreement.



          NOW,
THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:



          1. Certain Definitions. The “Effective Date” shall be the first date upon which a
“Change of Control” (as defined in Section 2) occurs.



          2. Change of Control. For the purpose of this Agreement, a “Change of Control” shall
mean:



               (a) The acquisition, whether by purchase, share exchange, merger, amalgamation, etc., or other
property exchange, by any individual, entity or group [within the meaning of Section 13(d)(3) or
14(D)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)] of beneficial
ownership (within the meaning of Rule 13d-3 under the Exchange Act) of 30% or more of either (i)
the then outstanding shares of common stock of the Company (the “Outstanding Company Common Stock”)
or (ii) the combined voting power of the then outstanding voting securities of the Company entitled
to vote generally in the election of directors (the “Company Voting Securities”), provided,
however, that any acquisition by the Company or any of its subsidiaries, or any employee
benefit plan (or related trust) sponsored or maintained by the Company or any of its subsidiaries,
shall not constitute a Change of Control; or



               (b) Individuals who, as of the date hereof, constitute the Board (the Incumbent Board”) cease
for any reason to constitute at least a majority of the Board, provided that any individual
becoming a director subsequent to the date hereof whose election or nomination for election by the
Company’s shareholders, was approved by a vote of at least a majority of the directors then
comprising the Incumbent Board shall be considered as though such individual were a member of the
Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of
office is in connection with an actual or threatened election contest relating to the election of
the Directors of the Company (as such terms are used in Rule 14a-11 of Regulation 14A promulgated
under the Exchange Act); or



               (c) (i) a complete liquidation or dissolution of the Company or (ii) sale or other disposition
of all or substantially all of the assets of the Company other than to an Affiliated Company. As
used herein, Affiliated Company means any company controlled by, controlling or under common
control with the Company.



1









 





          3. Employment Period. Prior to the Effective Date, this Agreement shall be binding
upon both parties, but shall not be effective, and Executive and the Company shall not have any
obligations to the other hereunder. After the Effective Date, the Company hereby agrees to continue
the Executive in its employ, and the Executive hereby agrees to remain in the employ of the
Company, for a period of twelve (12) months commencing on the Effective Date during the first two
years of employment and eighteen (18) months thereafter (the “Employment Period”). (The 18 months
provision subject to further review by the Board of Directors.)



          4. Terms of Employment.



               (a) Position and Duties.



                    (i) During the Employment Period, the Executive’s position, authority, duties and
responsibilities shall be at least commensurate in all material respects with the most significant
of those held, exercised and assigned at any time during the 90-day period immediately preceding
the Effective Date.



                    (ii) During the Employment Period, but excluding any periods of vacation and sick leave to
which the Executive is entitled, the Executive agrees to devote reasonable attention and time
during normal business hours to the business and affairs of the Company and, to the extent
necessary to discharge the responsibilities assigned to the Executive hereunder, to use the
Executive’s reasonable best efforts to perform faithfully and efficiently such responsibilities.



               (b) Compensation.



                    (i) Base Salary. During the Employment Period, the Executive shall receive an annual
base salary (“Annual Base Salary”) (which shall be paid in equal bi-monthly installments) at least
equal to twelve times the highest monthly base salary paid or payable to the Executive by the
Company and its affiliated companies in respect of the twelve-month period immediately preceding
the month in which the Effective Date occurs. As used in this Agreement, the term “Affiliated
Compan(ies)” includes any company controlled by, controlling or under common control with the
Company.



                    (ii) Incentive, Stock Option, Savings and Retirement Plans. In addition to Annual
Base Salary payable as hereinabove provided, the Executive shall be entitled to participate during
the Employment Period in all incentive stock option, savings and retirement plans, practices,
policies and programs applicable generally to any other Executives of the Company and its
Affiliated Companies.



                    (iii) Welfare Benefit Plans. During the Employment Period, the Executive and/or the
Executive’s family, as the case may be, shall be eligible for participation in and shall receive
all benefits under welfare benefit plans, practices, policies and programs provided by the Company
and its Affiliated Companies (including, without limitation, medical, prescription, dental,
disability, salary continuance, employee life, group life, accidental death and travel accident
insurance plans and programs) to the extent generally applicable to any other Executives of the
Company and its Affiliated Companies.



                    (iv) Expenses. During the Employment Period, the Executive shall



2









 





be entitled to
receive prompt reimbursement for all reasonable expenses incurred by the Executive in accordance
with the policies, practices and procedures of the Company and its Affiliated Companies in effect
for the Executives at any time during the 90-day period immediately preceding the Effective Date.



                    (v) Fringe Benefits. During the Employment Period, the Executive shall be entitled to
fringe benefits in accordance with the plans, practices, programs and policies of the Company and
its Affiliated Companies in effect for the Executive at any time during the 90-day period
immediately preceding the Effective Date.



                    (vi) Vacation. During the Employment Period, the Executive shall be entitled to paid
vacation in accordance with the most favorable plans, policies, programs and practices of the
Company and its Affiliated Companies as in effect at any time during the 90-day period immediately
preceding the Effective Date.



          5. Termination of Employment.



               (a) Death or Disability. The Executive’s employment hereunder and the Employment
Period shall terminate automatically upon the Executive’s death during the Employment Period. If
the Company’s Board determines in good faith that the Disability of the Executive has occurred
during the Employment Period (pursuant to the definition of Disability set forth below), it may
give to the Executive written notice in accordance with Section 11(b) of this Agreement of its
intention to terminate the Executive’s employment. In such event, the Executive’s employment with
the Company and the Employment Period shall terminate effective on the 30th day after
receipt of such notice by the Executive (the “Disability Effective Date”), if, within the 30 days
after such receipt, the Executive shall not have returned to full-time performance of the
Executive’s duties. For purposes of this Agreement, “Disability” means the absence of the Executive
from the Executive’s duties with the Company on a full-time basis for 180 consecutive business days
as a result of incapacity due to mental or physical illness which is determined to be total and
permanent by a physician selected by the Company or its insurers and acceptable to the Executive or
the Executive’s legal representative (such agreement as to acceptability not to be withheld
unreasonably).



               (b) Cause. The Company may terminate the Executive’s employment and the Employment
Period during the Employment Period for Cause. For purposes of this Agreement, “Cause” means (i) an
action taken by the Executive involving willful and wanton misconduct or gross negligence, or (ii)
the Executive being convicted of a felony or other crime which the Board reasonably determines
would have an adverse impact on Executive’s ability to perform his duties.



               (c) Good Reason. The Executive’s employment and the Employment Period may be
terminated during the Employment Period by the Executive for Good Reason. For purposes of this
Agreement, “Good Reason” means:



                    (i) the assignment to the Executive of any duties inconsistent in any respect with the
Executive’s position, authority, duties or responsibilities as contemplated by Section 4(a) of this
Agreement, or any other action by the Company which results in a significant diminution in such
position, authority, duties or responsibilities, excluding for this purpose an isolated,
insubstantial and
inadvertent action not taken in bad faith and which is remedied by the Company promptly after
receipt of notice thereof given by the Executive;



3









 





                    (ii) any failure by the Company to comply with any of the provisions of Section 4(b) of this
Agreement, other than an isolated, insubstantial and inadvertent failure not occurring in bad faith
and which is remedied by the Company promptly after receipt of notice thereof given by the
Executive;



                    (iii) the Company’s requiring the Executive to be based at any office or location which is
outside a 20-mile radius of the Company’s principal office immediately prior to the Effective Date;



                    (iv) any purported termination by the Company of the Executive’s employment otherwise than as
expressly permitted by this Agreement; or



                    (v) any failure by the Company to comply with and satisfy Section 10(c) of this Agreement.



          For purposes of this Agreement, any dispute concerning the determination of Good Reason shall
be determined by arbitration according to the provisions of the Colorado Uniform Arbitration Act
(C.R.S. § 13-22-201 et seq.)



               (d) Notice of Termination. Any termination by the Company for Cause or by the
Executive for Good Reason shall be communicated by Notice of Termination to the other party hereto
given in accordance with Section 11(b) of this Agreement. For purposes of this Agreement, a “Notice
of Termination” means a written notice which (i) indicates the specific termination provision in
this Agreement relied upon, (ii) to the extent applicable 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 and (iii) if the Date of Termination (as defined below) is other than
the date of receipt of such notice, specifies the termination date (which date shall be not more
than fifteen days after the giving of such notice). In the case of a termination of the Executive’s
employment for Cause, a Notice of Termination shall include a copy of a resolution duly adopted by
the affirmative vote of not less than a majority of the entire membership of the Board at a meeting
of the Board called and held for the purpose (after reasonable notice to the Executive and
reasonable opportunity for the Executive, to be heard before the Board prior to such vote), finding
that in the good faith opinion of the Board the Executive should be terminated for Cause. No
purported termination of the Executive’s employment for Cause shall be effective without a Notice
of Termination. The failure by the Executive to set forth n the Notice of Termination any fact or
circumstance which contributes to a showing of Good Reason shall not waive any right of the
Executive hereunder or preclude the Executive from asserting such fact or circumstance in enforcing
the Executive’s rights hereunder. A Notice of Termination may be given at any time during the
Employment Period.



               (e) Date of Termination. “Date of Termination” means the date of receipt of the
Notice of Termination or any later date specified therein, as the case may be; provided, however,
that (i) if the Executive’s employment is terminated by the Company other than for Cause or
Disability, the Date of Termination shall be the date on which the Company notifies the Executive
of such termination and (ii) if



the Executive’s employment is terminated by reason of death or Disability, the Date of Termination
shall be the date of death of the Executive or the Disability Effective Date, as the case may be.



4









 








          6. Obligations of the Company upon Termination.



               (a) Death. If the Executive’s employment is terminated by reason of the Executive’s
death during the Employment Period, this Agreement and the Employment Period shall terminate
without further obligations to the Executive’s legal representatives under this Agreement, other
than the following obligations: (i) payment of the Executive’s Annual Base Salary through the Date
of Termination to the extent not theretofore paid, (ii) payment of any accrued bonus and (iii)
payment of any compensation previously deferred by the Executive (together with any accrued
interest thereon) and not yet paid by the Company and any accrued vacation pay not yet paid by the
Company (the amounts described in paragraphs (i), (ii) and (iii) are hereafter referred to as
“Accrued Obligations”). All Accrued Obligations shall be paid to the Executive’s estate or
beneficiary, as applicable, in a lump sum in cash within 30 days of the Date of Termination.
Anything in this Agreement to the contrary notwithstanding, the Executive’s estate and family shall
be entitled to receive any insurance or similar benefits (excluding stock options and stock
bonuses) provided generally by the Company and any of its Affiliated Companies to the estates and
surviving families of executives of the Company and such Affiliated Companies.



               (b) Disability. If the Executive’s employment is terminated by reason of the
Executive’s Disability during the Employment Period, this Agreement and the Employment Period shall
terminate without further obligations to the Executive, other than for Accrued Obligations. All
Accrued Obligations shall be paid to the Executive in a lump sum in cash within 30 days of the Date
of Termination. Anything in this Agreement to the contrary notwithstanding, the Executive shall be
entitled after the Disability Effective Date to receive disability benefits at least equal to those
generally provided by the Company and its Affiliated Companies to disabled executives and/or their
families, if any, as in effect generally with respect to any executives of the Company and its
Affiliated Companies.



               (c) Cause; Other than for Good Reason. If the Executive’s employment shall be
terminated for Cause during the Employment Period, this Agreement and the Employment Period shall
terminate without further obligations to the Executive other than the obligation to pay to the
Executive Annual Base Salary through the Date of Termination plus the amount of any compensation
previously deferred by the Executive, in each case to the extent theretofore unpaid. If the
Executive terminates employment during the Employment Period other than for Good Reason, this
Agreement shall terminate without further obligations to the Executive, other than for Accrued
Obligations. In such case, all Accrued obligations shall be paid to the Executive in a lump sum in
cash within 30 days of the Date of Termination.



               (d) Good Reason; Other than for Cause or Disability. If, during the Employment
Period, the Company shall terminate the Executive’s employment other than for Cause or Disability,
or if the Executive shall terminate employment under this Agreement for Good Reason:



                    (i) the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date
of Termination the aggregate of the following amounts:



                         A. all Accrued Obligations; and



                         B. the product of (x) the remainder of the Employment Period expressed as a decimal fraction
(example: assume Effective Date is October 19, 2005 and the Termination
Date is January 31, 2006. The remainder of the Employment Period would be 260 days or
0.7123) and (y) the Annual Base Salary; and



                    (ii) for the remainder of the Employment Period, the Company shall



5









 





continue benefits to the
Executive and/or the Executive’s family at least equal to those which would have been provided to
them in accordance with the plans, programs, practices and policies described in Section 4(b)(iii)
of this Agreement if the Executive’s employment had not been terminated in accordance with the
plans, practices, programs or policies of the Company and it Affiliated Companies. For purposes of
determining eligibility of the Executive for retiree benefits pursuant to such plans, practices,
programs and policies, the Executive shall be considered to have remained employed until the end of
the Employment Period and to have retired on the last day of such period.



          7. Non-exclusivity of Rights. Nothing in this Agreement shall prevent or limit the
Executive’s continuing or future participation in any benefit, bonus, incentive or other plans,
programs, policies or practices, provided by the Company or any of its Affiliated Companies and for
which the Executive may qualify, nor shall anything herein limit or otherwise affect such rights as
the Executive may have under any other agreements with the Company or any of its Affiliated
Companies. Amounts which are vested benefits or which the Executive is otherwise entitled to
receive under any plan, policy, practice or program of the Company or any of its Affiliated
Companies at or subsequent to the Date of Termination shall be payable in accordance with such
plan, policy, practice or program except as explicitly modified by this Agreement.



          8. Full Settlement. Executive shall not be obligated to seek other employment or take
any other action by way of mitigation of the amounts payable to the Executive under any of the
provisions of this Agreement. If Executive is the prevailing party in any action hereunder, the
Company agrees to pay, to the full extent permitted by law, all legal fees and expenses which the
Executive may reasonably incur as a result of any contest by the Company, the Executive or others
of the validity or enforceability of, or liability under, any provision of this Agreement or any
guarantee of performance thereof (including as a result of any contest by the Executive about the
amount of any payment pursuant to this Agreement), plus in each case interest at the applicable
Federal rate provided for in Section 7872(f)(2) of the Internal Revenue Code of 1986, as amended
(the “Code”).



          9. Confidential Information. The Executive shall hold in a fiduciary capacity for the
benefit of the Company all secret or confidential information, knowledge or data relating to the
Company or any of its Affiliated Companies, and their respective businesses, which shall have been
obtained by the Executive during the Executive’s employment by the Company or any of its Affiliated
Companies and which shall not be or become public knowledge (other than by acts by the Executive or
representatives of the Executive in violation of this Agreement). After termination of the
Executive’s employment with the Company, the Executive shall not, without the prior written consent
of the Company, communicate or divulge any such information, knowledge or data to anyone other than
the Company and those designated by it.



          10. Successors.



               (a) This Agreement is personal to the Executive and without the prior written consent of the
Company shall not be assignable by the Executive otherwise than by will or the laws of descent and
distribution as to certain benefits hereunder. This Agreement shall inure to the benefit of and
be enforceable by the Executive’s legal representatives. This Agreement may be assigned by
Company without restriction to any entity, which is financially responsible for the performance of
Company’s obligations hereunder.



               (b) This Agreement shall inure to the benefit of and be binding upon the



6









 





Company and its
successors and assigns.



               (c) The Company will require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or assets of the
Company to assume expressly and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession had taken place. As
used in this Agreement, “Company” shall mean the Company as hereinbefore defined and any successor
to its business and/or assets as aforesaid which assumes and agrees to perform this Agreement by
operation of law, or otherwise.



          11. Miscellaneous.



               (a) This Agreement shall be governed by and construed in accordance with the laws of the State
of Colorado, without reference to principles of conflict of laws. The captions of this Agreement
are not part of the provisions hereof and shall have no force or effect. This Agreement may not be
amended or modified otherwise than by a written agreement executed by the parties hereto or their
respective successors and legal representatives.



               (b) All notices and other communications hereunder shall be in writing and shall be given by
hand delivery to the other party or by registered or certified mail, return receipt requested,
postage prepaid, express mail, or a commercially recognized letter or package delivery service,
addressed as follows:



	 	 	 
	 

	 	If to the Executive
	 
	 	 
	

	 	James K. B. Hesketh
	

	 	65 South Joyce Street
	

	 	Golden, CO 80401
	 
	 	 
	

	 	If to the Company
	 
	 	 
	

	 	Canyon Resources Corporation
	

	 	14142 Denver West Parkway, Suite 250
	

	 	Golden, CO 80401
	 
	 	 
	

	 	Attention: Chief Executive Officer






or to such other address as either party shall have furnished to the other in writing in accordance
herewith. Notice and communications shall be effective when actually received by the addressee.



               (c) The invalidity or unenforceability of any provision of this Agreement shall not affect the
validity or enforceability of any other provision of this Agreement.



               (d) The Company may withhold from any amounts payable under this Agreement such Federal ,
state or local taxes as shall be required to be withheld pursuant to any applicable law or
regulation.



               (e) The Executive’s failure to insist upon strict compliance with any provision



7









 





hereof or the
failure to assert any right the Executive may have hereunder, including, without limitation, the
right to terminate employment for Good Reason pursuant to Section 5(c)(i)-(v), shall not be deemed
to be a waiver of such provision or right or any other provision or right thereof.



     Executed this 3rd day of May 2005.



	 	 	 	 	 	 	 
	 	 	CANYON RESOURCES CORPORATION	 	 
	 
	 	 	 	 	 	 
	

	 	By:
	 	/s/ Richard H. De Voto	 	 
	

	 	 	 	 	 	 
	

	 	 	 	Richard H. De Voto	 	 
	

	 	 	 	Chief Executive Officer	 	 
	 
	 	 	 	 	 	 
	

	 	 	 	/s/ James K. B. Hesketh	 	 
	

	 	 	 	 	 	 
	

	 	 	 	James K. B. Hesketh	 	 







8