EXHIBIT 4.9
AGREEMENT WITH XXXXXXXX XXXXX
DATED JANUARY 2, 2004
MANAGEMENT AGREEMENT
THIS AGREEMENT made and effective as of the 2nd day of January, 2004
BETWEEN:
AMERA RESOURCES CORPORATION, having an office at 709
- 000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx
Xxxxxxxx, X0X 0X0
(the "Corporation")
OF THE FIRST PART
AND:
XXXXXXXX XXXXX having an office at Suite 2507 1408
Xxxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0
(the "Consultant")
OF THE SECOND PART
WHEREAS:
A. The Consultant provides executive level management services to corporations
engaged in the mineral exploration and development industry.
B. The Corporation wishes to retain the Consultant to provide services with
respect to the corporate and administrative affairs of the Corporation, as more
particularly set out herein.
NOW THEREFORE, In consideration of the mutual covenants, premises, agreements
and conditions herein contained and other good and valuable consideration (the
receipt and authenticity of which is hereby acknowledged by the parties) the
Consultant and the Corporation hereby agree as follows:
1. DEFINITIONS AND INTERPRETATION
For all purposes of this Agreement, except as otherwise expressly provided:
(a) "this Agreement" means this contract for corporate and
administrative services as from time to time supplemented or
amended by one or more agreements entered into pursuant to the
applicable provisions hereof;
(b) the words "herein" and "hereunder" and other words of similar
importance refer to this Agreement as a whole and not to any
particular paragraph, sub-paragraph or other subdivision;
(c) all references to currency mean lawful currency of Canada;
(d) the headings are for convenience only and are not intended as a
guide to interpretation of this Agreement of any portion hereof;
(e) "Business Day" means any day on which the Corporation's bankers
located in Vancouver, British Columbia, are open for business
during normal banking hours, other than a Saturday or a Sunday;
and
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(f) "Services" means the services described in section 3 of this
Agreement.
2. ENGAGEMENT AND TERM
(a) The Corporation hereby engages the Consultant to provide the
Services and the Consultant hereby agrees to provide the Services
to the Corporation.
(b) The Consultant's engagement will commence on and from the
effective date of this Agreement and continue until this
Agreement is terminated in accordance with the provisions herein.
3. SCOPE OF SERVICES
The Services to be provided by the Consultant shall consist of the following:
(a) securing the services of Xx. Xxxxxxxx Xxxxx on a full time basis
to act as President and Chief Executive Officer of the
Corporation and to assist the Corporation with respect to all
aspects of its business including, but not limited to strategic
planning, financing, acquisitions and dispositions and corporate
structuring;
(b) liaising with the Corporation's professional representatives on
all matters other than of a general administrative nature;
(c) liaising with regulators and stock exchange officials with
respect to regulatory policies, rules and procedures applicable
to the Corporation;
(d) assisting and advising with respect to strategic long-term
planning, financing alternatives, corporate objectives and
corporate governance issues.
(e) providing such further and other services as the board of
directors of the Corporation may, from time to time, request.
4. COMPENSATION
(a) FEE. During the term of this Agreement, the Consultant will be
paid a monthly fee as follows: $5,300.00 for the month of January
2004; $5,850.00 for the month of February 2004; and, $6,125.00
thereafter, plus applicable GST.
(b) REIMBURSEMENT OF EXPENSES. In addition to the foregoing, the
Corporation will reimburse the Consultant for all reasonable
travel expenses, including car rentals, food and lodging, and
sundry expenses and all other out of pocket expenses reasonably
incurred in connection with the business of the Corporation or
any of its subsidiaries within 15 days of presentation of
receipts or other evidence satisfactory to the Corporation in
respect of such expenses.
(c) STOCK OPTIONS. The Corporation will grant to the Consultant,
stock options in such amounts and on such terms as may be
determined by the board of directors of the Corporation, from
time to time.
(d) BONUS. In addition to the foregoing, the Consultant will be
entitled to a bonus or bonuses in such amounts and on such terms
as may be determined by the board of directors of the
Corporation, from time to time.
(e) ADJUSTMENT TO COMPENSATION. On each anniversary of the date of
this Agreement, while the Consultant remains engaged by the
Corporation, the board of directors of the
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Corporation, or a committee of such a board, will carry out an
objective review of the terms of reference of this Agreement and
the Consultant's performance, including comparable agreements in
the industryand, if warranted, the compensation provided herein
may be increased by the Corporation (but not decreased) for the
following year of engagement, if any, and thereafter.
5. CONSULTANT'S RIGHT TO TERMINATE
The Consultant may terminate his engagement under this Agreement at any time
upon the occurrence of the following events:
(a) at any time upon providing 60 days' notice in writing to the
Corporation;
(b) upon a material breach or default of any term of this Agreement
by the Corporation if such material breach or default has not
been remedied within 30 days after written notice of the material
breach or default has been delivered by the Consultant to the
Corporation; or
(c) in accordance with subsection 7(b).
6. CORPORATION'S RIGHT TO TERMINATE
The Corporation may terminate the Consultant's engagement under this Agreement
at any time upon the occurrence of any of the following events:
(a) the Consultant acting unlawfully, dishonestly, in bad faith or
negligently with respect to the business of the Corporation to
the extent that it has a material and adverse effect on the
Corporation, or acting in any way which would permit the
Corporation to terminate the Agreement "for cause" at common law
if the Consultant was an employee of the Corporation;
(b) the conviction of the Consultant of any crime or fraud against
the Corporation or its property or any felony offense or crime
reasonably likely to bring discredit upon the Consultant or the
Corporation;
(c) the Consultant filing a voluntary petition in bankruptcy, or
being adjudicated bankrupt or insolvent, or filing any petition
or answer under any present or future statute or law relating to
bankruptcy, insolvency or other relief for debtors;
(d) a material breach or default of any term of this Agreement by the
Consultant if such material breach or default has not been
remedied within 30 days after written notice of the material
breach or default has been delivered by the Corporation to the
Consultant;
(e) Xxxxxxxx Xxxxx dying or becoming permanently disabled, as
determined by a competent physician chosen by the Corporation, or
disabled for a period exceeding 360 consecutive days or 360 days
calculated on a cumulative basis over any two year period during
the term of this Agreement;
(f) in accordance with subsection 7(b); or
(g) at the discretion of the Corporation without cause.
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7. CHANGE OF CONTROL
(a) For the purposes of this Agreement, a "Change of Control" shall
be deemed to have occurred when:
(i) a majority of the directors elected at any annual or
special general meeting of shareholders of the
Corporation are not individuals nominated by the
Corporation's then incumbent Board;
(ii) there is occurrence of an event, including a take over
bid (as defined in the SECURITIES ACT (British Columbia),
whereby any person or entity becomes the beneficial owner
of shares representing 25% or more of the combined voting
power of the voting securities of the Corporation;
(iii) there is a merger or amalgamation of the Corporation with
one or more corporations as a result of which,
immediately following such merger or amalgamation, the
shareholders of the Corporation as a group will hold less
than a majority of the outstanding capital stock of the
surviving corporation; or
(iv) the Corporation sells all or substantially all of its
assets.
(b) In the event of a Change of Control of the Corporation, the
Corporation or the Consultant may terminate the Consultant's
engagement under this Agreement within 180 days of the Change of
Control upon giving 30 days' notice in writing to the other
party, and in such event, the Consultant will be entitled to
receive the compensation set out in subsection 8(c).
8. PAYMENTS ON TERMINATION
(a) In the event of the termination of the Consultant's engagement
pursuant to subsection 5(a), 6(a), 6(b), 6(c) or 6(d) of this
Agreement, the Corporation shall pay to the Consultant within
three Business Days of the date of such termination the full
amount of compensation accrued pursuant to subsections 4(a) and
4(b) of this Agreement as of the date of termination.
(b) In the event of the termination of the Consultant's engagement
pursuant to subsections 5(b) or 6(e) of this Agreement, the
Corporation shall pay to the Consultant within three Business
Days of the date of such termination:
(i) the full amount of compensation accrued pursuant to
subsections 4(a) and 4(b) of this Agreement as of the
date of termination, and
(ii) the bonus referred to under subsection 4(d) to the date
of termination.
(c) In the event of the termination of the Consultant's engagement
pursuant to subsection 6(g) or 7(b) of this Agreement, the
Corporation shall pay to the Consultant within three Business
Days of the date of such termination:
(i) the full amount of compensation accrued pursuant to
subsections 4(a) and 4(b) of this Agreement as of the
date of termination,
(ii) the bonus referred to under subsection 4(d) to the date
of termination, and
(iii) an amount equal to 18 months of his then monthly fee
determined under subsection 4(a).
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(d) Any payments made pursuant to sections 8(a), 8(b) or 8(c) will be
made as liquidated damages and not as a penalty, and the parties
have agreed in advance that such amounts represent a genuine
pre-estimate of the damages to be suffered by the Consultant
should this Agreement be terminated pursuant to sections 5, 6 or
7(b).
9. CONFIDENTIALITY
The Consultant shall not either during the continuance of its engagement or
anytime thereafter divulge, publish or otherwise reveal either directly or
indirectly or through any person, firm or corporation the private affairs or
secrets of the Corporation, its subsidiaries or affiliates to any person or
persons other than the directors of the Corporation and shall not without the
written consent of the Corporation either during the continuance of its
engagement or at any time thereafter, use for its own purpose or any purpose
other than those of the Corporation any information it may acquire in relation
to the business and affairs of the Corporation except such information which is
in the public domain or is required by law to be disclosed. The Consultant
agrees, during the term of its engagement and at all times thereafter to keep
confidential all information and material provided to it by the Corporation,
accepting only such information as is already known to the public or required by
law to be disclosed, and including any such information already known to the
public or required by law to be disclosed, and including any such information
and material in relation to any customer, vendor or other party transacting
business with the Corporation, and not to release, use or disclose the same,
except with the prior written permission of the Corporation. The within
understanding shall survive the termination of this Agreement or of the
Consultant's engagement even if occasioned by the Corporation's breach or
wrongful termination.
10. INDEPENDENT CONTRACTOR
In performing the Services hereunder, the Consultant shall operate as and shall
have the status of an independent contractor and shall not act or hold itself
out as or be an agent of the Corporation and shall not bind the Corporation to
any agreement or transaction.
11. SEVERABILITY
The invalidity or unenforceability of any provisions of this Agreement shall not
affect the validity or enforceability of any other provision of this Agreement,
which shall remain in full force and effect.
12. ENUREMENT
This Agreement shall enure to the benefit of and be binding upon the parties
hereto and their respective successors and permitted assigns.
13. NOTICES
Unless otherwise specified in this Agreement, any notice or other communication
required to be given by any party pursuant to this Agreement must be in writing,
given by letter or notice delivered by hand or first-class prepaid post or
transmitted by facsimile transmission, and addressed to the recipient and sent
to the address and facsimile number of the recipient set out below, marked for
the attention of the representative set out below:
(a) If to the Consultant: Xx. Xxxxxxxx Xxxxx
Suite 2507 - 0000 Xxxxxxxxxx Xxxx
Xxxxxxxxx, XX X0X 0X0
Fax: 000-000-0000
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(b) If to the Corporation: Amera Resources Corporation
709 - 000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX, X0X 0X0
Fax: 000-000-0000
Any notice personally delivered shall be deemed to have been given by the sender
and received by the addressee at the time of delivery. Any notice sent by
facsimile shall be deemed to have been given by the sender and received by the
addressee on the first business day after it was transmitted.
14. GOVERNING LAW
The validity, interpretation, construction and performance of the Agreement
shall be governed by the laws of the Province of British Columbia and the
parties hereby irrevocably attorn to the jurisdiction of the courts of British
Columbia.
15. WAIVER
No provisions of this Agreement may be modified waived or discharged unless such
waiver modification or discharge is agreed to in writing signed by the
Consultant and the Corporation. No waiver by either party hereto at any time of
any breach by the other party hereto of, or compliance with any condition or
provision of this Agreement to be preformed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same time or
at any prior or subsequent time.
16. ENTIRE AGREEMENT
No agreements or representations, oral or otherwise, expressed or implied with
respect to the subject matter hereof have been made by wither party which are
not set forth expressly in the Agreement.
17. NO ASSIGNMENT
This Agreement may not be assigned by either party hereto without the written
consent of the other.
18. COUNTERPARTS
The Agreement may be executed in one or more counterparts each of which shall be
deemed to be an original but all of which together will constitute one and the
same Agreement.
IN WITNESS WHEREOF the parties have caused this Agreement to be executed,
delivered and made effective as of the day and year above first set forth.
AMERA RESOURCES CORPORATION
Per:
/s/ Xxxxxx Xxxxxxx
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/s/ Xxxxxxxx Xxxxx
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XXXXXXXX XXXXX
