MANAGEMENT SERVICES AGREEMENT
This Agreement dated for reference as of the 15th day of July, 2005
BETWEEN:
OLYMPUS PACIFIC MINERALS INC., a Yukon Territory company having its
head office at Suite 500 - 00 Xxxx Xxxxxx Xxxx, Xxxxxxx, Xxxxxxx, X0X
0X0, Xxxxxx
(the "Company")
OF THE FIRST PART
AND:
XXXXXX X. XXXXXX, doing business as WYNDSPIRE ADVISORS whose address
is 00 Xxxxx Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxx, 00000 (the
"Manager")
OF THE SECOND PART
WHEREAS:
A. The Manager has been fulfilling the duties of President, Chief Executive
Officer and director of the Company and has agreed to resign from such
duties and to continue to assist the Company as an independent consultant
on the terms and conditions of this Agreement; and
B. The Manager and the Company have agreed to enter into this management
services agreement to ensure that the Manager will provide his services to
the Company on the terms set out herein and to evidence the compensation
and other benefits to be received by the Manager in respect to such
services and in compensation for resigning from the positions aforesaid.
NOW THEREFORE, in consideration of the mutual covenants and premises
herein contained and for other good and valuable consideration (the receipt and
sufficiency of which are hereby acknowledged by the parties), the Manager and
the Company hereby agree as follows:
1. Interpretation
For all purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) "affiliate" has the meaning given to it by the Business Corporations
Act (Yukon Territory);
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(b) "Board" means the board of directors of the Company;
(c) "this Agreement" means this management services agreement as from time
to time supplemented or amended by one or more agreements entered into
pursuant to the applicable provisions hereof;
(d) the words "herein", "hereof' and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any
particular paragraph, sub-paragraph or other subdivision;
(e) all references to currency mean currency of the United States of
America;
(f) a reference to an entity includes any entity that is a successor to
such entity;
(g) the headings are for convenience only and are not intended as a guide
to interpretation of this Agreement or any portion hereof; and
(h) a reference to a statute includes all regulations made pursuant
thereto, all amendments to the statute or regulations in force from
time to time, and any statute or regulation which supplements or
supersedes such statute or regulations.
2. Resignation and Engagement
(a) The Manager hereby resigns, effective immediately, as President and
Chief Executive Officer and as a director of the Company and from any
and all offices or directorships with any of the Company's
subsidiaries or affiliates and the Company hereby accepts such
resignation by the Manager on and subject to the terms and conditions
hereinafter set forth. The Manager will deliver such separate
instruments or notices of resignation as the Company may reasonably
require to give effect to this Section.
(b) The Company hereby engages the Manager from the date of this Agreement
for a term of one year (the "Term") as an independent consultant. The
Manager hereby accepts the terms of this Agreement as full and final
settlement of any claims he may have in connection with the surrender
of his positions as President and Chief Executive Officer and director
of the Company and will execute and deliver the release attached as
Schedule "A" hereto concurrently with the execution and delivery of
this Agreement in evidence thereof. The Company will pay up to the
amount of CDN$10,000 to reimburse the Manager for his reasonable legal
fees and disbursements incurred in connection with his resignation and
with the settlement and execution of this Agreement upon presentation
of an invoice therefore. The Company will provide to the Manager a
draft of its proposed public disclosure on the Manager's change of
relationship with the Company prior to its release and will
incorporate the Manager's reasonable comments on the contents of such
public disclosure.
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(c) From the date of this Agreement and during the Term the Manager will
be available to consult with the Company with respect to matters which
the Manager and the Company mutually agree upon, however, there will
be no obligation on the Manager to complete a minimum number of hours
during any particular month of the Term.
(d) The Manager shall perform the duties contemplated in Section 2(c) from
locations outside of Canada and primarily from his base in Houston,
Texas and not from the Company's offices in Toronto, Ontario.
(e) The Manager shall be free during the Term, without any reduction in
his remuneration, to work for parties other than the Company and to
accept, should the Manager so choose, full-time employment or
engagement with others.
(f) The Manager will perform all services on behalf of the Company
hereunder as an independent contractor, and the Manager will not be
considered for any reason to be a partner, employee or servant of the
Company or, except to the extent expressly permitted hereunder, an
agent of the Company.
3. Compensation
(a) The Manager will be paid a monthly fee, upon receipt of an invoice
submitted to the Company, of $13,333.33 (yielding an annual fee of
$160,000), without deduction for Canadian or any other withholding
taxes (the "Fee"), such Fee to be payable on or before the 28th day of
each month.
(b) In addition to the amounts referred to in Sections 2(b) and 3(a)
hereof and any outstanding expenses not reimbursed as of the date
hereof, the Company will reimburse the Manager within 15 days of
submission for all travel expenses, including car rentals, food and
lodging and sundry expenses, expenses for assignments, relocations and
transfers, and all other expenses incurred in connection with the
business of the Company or any of its subsidiaries (including parking
near the Company's office premises). The Manager shall be entitled
during the Term to continue to use the laptop computer and accessories
owned by the Company and currently in his possession. On termination
of Term the Manager will retain the laptop and accessories for his own
use.
(c) The Manager shall submit bills and vouchers reasonably satisfactory to
the Board supporting all requests for reimbursement under subsection
(b).
(d) The Manager will continue to retain his currently held option to
purchase 500,000 shares in the capital of the Company for the balance
of the term of the existing option and will receive fully vested
options to purchase at any time up, except as hereafter set forth, to
and including a date three years from the date of this Agreement
1,250,000 shares in the capital of the Company at a price of CDN$0.40
per share, for a total of 1,750,000 options (the "Options").
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(e) The Manager will not sell more than 500,000 shares within any six
month period upon exercise of any of the Options without the prior
written consent of the Company. If the Manager proposes to exercise
any of the Options and to sell the shares acquired thereby he will
give the Company ten business days advance notice in writing (the
"Exercise Notice") of his intention to do so, including the number of
shares which he intends to sell, and the Company may elect by notice
in writing to the Manager within that ten day period to pay to the
Manager, in lieu of issued common shares of the Company upon such
proposed exercise of the Options, a cash amount equal to the spread
between the exercise price of the Options proposed to be exercised and
the average of the closing price of the Company's common shares as
reported on the TSX Venture Exchange (or such other stock exchange on
which the Company's shares may be listed) for the five trading days
preceding the date of the Exercise Notice and, in the event of such
election and payment by the Company, that portion of the Options will
be cancelled. If the Manager proposes in the Exercise Notice to sell
100,000 or more shares within 7 days of the exercise of the Options
the Company will have the right, in lieu of the foregoing cash
payment, to arrange for the purchase of such shares over the
facilities of the TSX Venture Exchange (or such other stock exchange
on which the Company's shares may be listed at the prevailing market
price).
(f) The Manager will be personally responsible to remit and pay to the
appropriate taxation authorities income tax in respect to the Fee,
whether in Canada or in the United States of America.
4. Termination and Default
(a) If the Company terminates this Agreement and the engagement of the
Manager at any time without cause, or defaults in the observation of
any term or condition hereof, then in either case this Agreement shall
he deemed to be terminated and the Company shall then be immediately
obligated to provide the Manager with a severance payment in lieu of
notice. Such severance payment shall be payable on the fifth day
following the date of the notice of termination or default as the case
may be and shall consist of the following:
(i) the Manager's full compensation through to the date of
termination, including all amounts due under Section 3(b), plus a
lump sum payment equal to the balance of the Fees which would
otherwise have been paid to the Manager for the remainder of the
Term; and
(ii) a covenant from the Company to the effect that the Manager's
options on shares of the Company shall remain in full force and
effect for the balance of the term of such options in accordance
with Section 3(e).
Termination of this Agreement in accordance with this Section and
compliance by the Company with the provisions of clauses (i) and (ii)
of this Section 4(a) shall
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relieve the Company from any and all obligation, liability or claim by
the Manager, exclusive of monies owing to the Manager up to the date
of such termination pursuant to this Section 4 provided that in the
event that the Company defaults in the payment of the amounts or
observation of any of its covenants under this Section 4, then all
remaining consideration payable to the Manager would be immediately
accelerated and a consent to a default judgment would be entered
against the Company in connection with any proceedings required to be
commenced by the Manager in order to enforce its rights hereunder.
(b) On the termination of his engagement the Manager will deliver to the
Company all documents, financial statements, records, plans, drawings
and papers of every nature in any way relating to the affairs of the
Company and its associated or affiliated companies which may be in his
possession or under his control.
(c) If the Manager should die during the period of his engagement
hereunder, termination of his engagement shall be deemed to have been
effected by the Company and the provisions of Section 4(a) shall
apply. In such event, any payment to be made to the Manager pursuant
to this Agreement shall be paid to the legal representatives of the
Manager provided the Company has received notice of claim from the
Manager's legal representative within sixty (60) days of the Manager's
death, provided further that any outstanding stock options shall
continue to be exercisable by the legal representatives of the Manager
until the earlier of the expiry date of the options and twelve (12)
months following the date of death of the Manager.
(d) The Manager shall not be required to mitigate the amount of any
payments provided for under any paragraph of this Section by seeking
other employment or otherwise nor shall the amount of any payment
provided for in this Section be reduced by any compensation earned by
the Manager as the result of employment by another employer after the
date of termination or otherwise.
(e) On termination of this Agreement Sections 3(e) and 13(a) will survive
and continue in full force and effect in accordance with their terms.
5. Successors, Binding Agreement
(a) The Company shall require any successor (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to all, or
substantially all, of the business or assets of the Company, by
agreement in form and substance satisfactory to the Manager, expressly
to assume and agree to perform this Agreement in the same manner and
to the same extent that the Company would be required to perform if no
such succession had taken place. As used in this Agreement, "the
Company" shall be as defined in the preamble to this Agreement and
include any successor to its business or assets which executes and
delivers the agreement provided for in this Section 5 or which
otherwise becomes bound by all the terms and provisions of this
Agreement by operation of law.
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(b) This Agreement shall enure to the benefit of and be enforceable by the
Manager's heirs, successors and administrators.
6. Notices
(a) For the purposes of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be
deemed to have been duly given and received when faxed, on the first
business day following delivery, and when delivered or mailed by
registered or certified mail, return receipt requested, postage
prepaid, on the second business day following delivery, in each case
addressed as follows:
(i) if to the Manager:
Xxxxxx X. Xxxxxx
00 X. Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxx 00000
Fax: 000.000.0000
(ii) if to the Company:
Olympus Pacific Minerals Inc.
Xxxxx 000 - 00 Xxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Fax: 000.000.0000
or to such other address as any party may have furnished to the others
in writing in accordance herewith, except that notices of change of
address shall be effective only upon receipt.
7. Governing Law
(a) The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the Province of Ontario.
8. Miscellaneous
(a) 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 Manager and the Company. 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
performed by such other party shall be deemed a waiver
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of similar or dissimilar provisions or conditions at the same or at
any prior or subsequent time.
9. Severability
(a) The invalidity or unenforceability of any provisions of this Agreement
shall not affect the validity or enforceability or any other provision
of this Agreement, which shall remain in full force and effect.
10. Counterparts
(a) This 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.
11. Assignability
(a) Neither of the parties hereto shall, without the consent of the other,
assign or transfer this Agreement or any rights or obligations
hereunder, except as provided in Sections 4 and 5. Without limiting
the foregoing, the Manager's right to receive payments hereunder shall
not be assignable or transferable, whether by pledge, creation of a
security interest or otherwise, and in the event of any attempted
assignment or transfer contrary to this paragraph the Company shall
have no liability to pay any amount so attempted to be assigned or
transferred. Notwithstanding the generality of the foregoing, the
Manager may assign its rights and obligations pursuant to this
Agreement to a company or other entity wholly controlled by the
Manager which undertakes to the Company to make the Manager's services
available to the Company on identical terms and conditions as this
Agreement.
12. Competitive Activity
(a) For a period of one (1) year from the date of this Agreement, the
Manager shall not engage in any Competitive Activity. For purposes of
this Agreement, "Competitive Activity" shall mean the Manager's
participation, without the written consent of an officer of the
Company, such consent not to be unreasonably withheld, in the
management of any business operation of any enterprise if such
operation (a "Competitive Operation") engages in substantial and
direct competition with any mineral exploration activity or mining
operation actively conducted by the Company or its subsidiaries on the
date of termination of this Agreement. For purposes of this Section
12, mineral exploration activity or a mining operation shall be
considered in substantial and direct competition with the Company if
such mining operation is conducted within Vietnam. "Competitive
Activity" shall not include (i) the mere ownership of securities in
any enterprise or (ii) participation in the management of any
enterprise or any
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business operation thereof, other than in connection with a
Competitive Operation of such enterprise.
13, Confidentiality
(a) The Manager shall not during the Term or at any time during one (1)
year thereafter divulge, publish or otherwise reveal either directly
or indirectly or through any person, firm or corporation the private
affairs or secrets of the Company, its subsidiaries or affiliates to
any person or persons other than the Board and shall not without the
written consent of the Company during Term or at any time thereafter
use for his own purpose or any purpose other than those of the Company
any information it may acquire in relation to the business and affairs
of the Company. The Manager agrees, during the Term and at all times
thereafter to keep confidential all information and material provided
to him by the Company, excepting only such information as is already
known to the public, and including any such information and material
relating to any customer, vendor or other party transacting business
with the Company, and not to release, use or disclose the same except
with the prior written permission of the Company. The within
understanding shall survive the termination or cancellation of this
Agreement, even if occasioned by the Company's breach or wrongful
termination.
14. Entire Agreement
This Agreement, together with option agreements and the Schedule to this
Agreement, constitutes the entire agreement between the parties and supersedes
all prior agreements, understandings, negotiations and discussions, whether oral
or written, between the parties and
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there are no warranties, representations or other agreements between the parties
except as specifically set forth therein.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered as of the day and year first above set forth.
OLYMPUS PACIFIC Minerals INC.
PER:
--------------------------------
Authorized Signatory
)
)
/s/ Xxxxxx Xxxxx ) /s/ Xxxxxx X. Xxxxxx
------------------------------------- ) ------------------------------------
Signature ) XXXXXX X. XXXXXX
)
Xxxxxx Xxxxx )
)
)
)
------ )
SCHEDULE "A"
RELEASE
RELEASE OF OLYMPUS BY XXXXXX
IN CONSIDERATION of the terms and conditions contained in the
Agreement between Olympus Pacific Minerals Inc. ("Olympus") and Xxxxxx X. Xxxxxx
("Xxxxxx) dated as of July 15, 2005 (the "Agreement") and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Xxxxxx, on behalf of his heirs, executors, administrators and
assigns, hereby releases, remises and forever discharges Olympus and its
subsidiary and affiliated companies, their respective successors and assigns and
their respective officers, directors, employees and agents (hereinafter
collectively referred to as the "Releasees"), of and from all manner of actions,
causes of action, suits, debts, duties, accounts, bonds, covenants, contracts,
claims and demands whatsoever which against the said Releasees Xxxxxx now has,
or ever had or hereinafter can, shall or may have for or by reason of any cause,
matter or thing whatsoever existing up to the present time and, without limiting
the generality of the foregoing, arising from the engagement of Xxxxxx by
Olympus as President, Chief Executive Officer and director or from the
termination of such engagements, including severance pay, bonuses or performance
pay, benefits including disability benefits, expenses, entitlement to reasonable
notice or compensation in lieu at common law.
AND FOR THE SAID CONSIDERATION, Xxxxxx covenants not to commence any
proceeding -or make any claim against the Releasees or any person entitled to
claim contribution and indemnity from the Releasees in respect of any claim
released herein.
XXXXXX FURTHER COVENANTS AND AGREES not to disclose the existence or
terms of this settlement to anyone other than to his professional financial and
legal advisors, or as required by law (except to the extent already previously
disclosed by Olympus).
IT IS UNDERSTOOD AND AGREED that the giving of the before-mentioned
consideration is deemed to be no admission of liability on the part of the said
Releasees and it shall not be referred to, directly or indirectly, by the
Releasor as such an admission or recognition of liability.
AND XXXXXX HEREBY DECLARES having fully understood the terms of this
settlement and having had legal advice or the opportunity to obtain same with
respect to this settlement and voluntarily accepts this settlement for the
purpose of making full and final compromise, adjustment and settlement of all
claims as aforesaid.
RELEASE OF XXXXXX BY OLYMPUS
AND IN CONSIDERATION of the terms and conditions contained in the
Agreement and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, Olympus on behalf of the Releasees and their
successors and assigns, hereby releases, remises and forever discharges Xxxxxx
of and from all manner of actions, causes of action, suits, debts, duties,
accounts, bonds, covenants, contracts, claims and demands whatsoever which
against the said Xxxxxx the Releasees now have, or ever had or hereinafter can,
shall or may have for or by reason of any cause, matter or thing whatsoever
existing up to the present time and, without limiting the generality of the
foregoing, arising from the engagement of Xxxxxx by Olympus as President, Chief
Executive Officer and director.
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AND FOR THE SAID CONSIDERATION, Olympus on behalf of the Releasees
covenants not to commence any proceeding or make any claim against Xxxxxx or any
person entitled to claim contribution and indemnity from Xxxxxx in respect of
any claim released herein.
OLYMPUS ON BEHALF OF THE RELEASEES FURTHER COVENANTS AND AGREES not to
disclose the existence or terms of this settlement to anyone other than their
professional financial and legal advisors, or as required by law or the rules of
any stock exchange on which Olympus' shares are listed.
IT IS UNDERSTOOD AND AGREED that the giving of the before-mentioned
consideration is deemed to be no admission of liability on the part of Xxxxxx
and it shall not be referred to, directly or indirectly, by the Releasees as
such an admission or recognition of liability.
AND OLYMPUS ON BEHALF OF THE RELEASEES DOES HEREBY DECLARE having
fully understood the terms of this settlement and having had legal advice or the
opportunity to obtain same with respect to this settlement and voluntarily
accepts this settlement for the purpose of making full and final compromise,
adjustment and settlement of all claims as aforesaid.
IN WITNESS WHEREOF, the parties has hereunto executed this Release by
affixing hand and seal this _________________________ day of___________________,
2005, in the presence of the witness whose signature is subscribed below.
Authorized Signatory
OLYMPUS PACIFIC MINERALS INC.
Per:
--------------------------------
SIGNED, SEALED and DELIVERED by
XXXXXX X. XXXXXX in the presence of:
Signature )
)
------ )
Witness Name (print) )
) /s/ Xxxxxx X. Xxxxxx
-------------- ) ------------------------------------
) XXXXXX X. XXXXXX
)
Occupation )
Address ------ )
)
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