EXHIBIT 10.10
AGREEMENT
THIS AGREEMENT made this 18th day of March, A.D. 1999.
BETWEEN:
AMERICAN BENEFITS GROUP, LTD. a body corporate registered pursuant to the laws
of the Province of Alberta in the country of Canada (hereinafter called "ABFG")
and
APRIL MINING GROUP, LTD. a body corporate registered pursuant to the laws of the
Province of Alberta in the country of Canada (hereinafter called "April").
WHEREAS ABFG has been contracted to supply personnel for AMERICAN BENEFITS
GROUP, INC.'s mining projects initially in the Democratic Republic of Madagascar
but which could, in the future, expand to other countries in Africa and/or Asia,
AND WHEREAS ABFG requires April to supply ABFG with" supervisory personnel" to
fulfill that specific aspect of ABFG's agreement with AMERICAN BENEFITS GROUP,
INC..
AND WHEREAS April is desirous of supplying ABFG with said "supervisory
personnel" pursuant to the terms hereinafter recited.
WITNESSTH THAT:
1.0 TERM
1.1 The term of this Agreement shall be from the date hereof up to and
including the 16 th day of March, A.D. 2000, hereinafter called 'the
term".
2.0 RENEWAL
2.1 Pursuant to the terms of this paragraph 2.0 ABFG has the sole and
unfettered discretion to renew1his Agreement for a renewal term or terms
of THREE (3) years each in duration provided that ABFG may only renew this
Agreement THREE (3) times the terms of each renewal to be from Xxxxx 00 xx
A.D. 2000 to Xxxxx 00 xx , A.D. 2003 inclusive; from March 17th, A.D. 2003
to March 16 th, A.D. 2006 inclusive; and, from March 17th, A-D. 2006 to
March16 th, A.D. 2009 inclusive respectively.
2.2 The Agreement for each renewal term shall be the same as this Agreement
save and except that this Agreement may only be renewed THREE (3) times.
2.3 To renew this Agreement ABFG shall provide April with written notice of
it's intention to so renew the Term or Renewal Term, as the case may be,
at April's Address for Service hereinafter provided.
2.4 The Notice required to be provided in paragraph 2.3 herein shall be
received by April, at it's Address for Service hereinafter provided on or
before the December 1 st immediately preceding the expiration of the Term
or Renewal Term to be renewed.
2.5 In the event that April does not receive ABFG's Notice of Renewal as
stipulated in paragraphs 2.3 and 2.4 herein then, and in that event, the
contractual agreement between the parties is at an end on the next
subsequent March 16.
3.0 TERMINATION
3.1 Neither of the parties hereto shall terminate this Agreement or cause it
to come to an end except through the provisions of this paragraph 3.0 and,
only then in the event that the other party hereto is found, pursuant to
the Mediation Provisions of paragraph 8.0 herein, to be in "substantial
breach" of it's obligations hereunder and remains in "substantial breach"
of it's obligations hereunder for a period of thirty (30) days subsequent
to being advised of the unsubstantial breach" and is still in "substantial
breach" at the time that this Agreement is terminated or comes to an end.
3.2 In the event that either party alleges a "substantial breach" of this
Agreement then and in that event it shall cause written notice of said
alleged unsubstantial breach" to be served upon the other party at it's
Address for -Service herein provided.
3.3 The party on whom a Notice of Substantial Breach is served upon pursuant
to paragraph 3.2 herein shall have FOURTEEN (14) days from the date of the
posting of the Notice of Substantial Breach in which to rectify and cure
the " substantial breach":.
3.4 In the event that the party whom it is alleged has committed a
"substantial breach" of this Agreement does not cure the alleged
"substantial breach" as prescribed in paragraph 3.3 herein then , and in
that even, the party alleging the "substantial breach" shall avail itself
to the Mediation provisions of this Agreement prior to terminating or
causing this Agreement to come to an end.
3.5 It is agreed by and between the parties hereto that neither party hereto
shall terminate, cause this Agreement to come to an end or otherwise cease
it's obligations hereunder until such time as the Mediation Provisions of
this Agreement are concluded.
3.6 For the purpose of this Agreement "substantial breach" shall mean any
action or inaction of a party, explicitly in contravention With the terms
hereof to which the other party cannot reasonably be compensated for by
damages or to which a reasonable and prudent business man would be unable
to carry out business as a result thereof.
4.0 AGREEMENT SUSPENSION
4.1 The parties hereto acknowledge each to the other that this Agreement is
dependent upon AMERICAN BENEFITS GROUP, INC. being able to continue it's
mining operations in the Democratic Republic of Madagascar and elsewhere,
if so commenced in the future, and in the event that AMERICAN BENEFITS
GROUP, INC. is, through causes not within it's reasonable control, unable
to continue it's mining operations or any portion thereof and the contract
between AMERICAN BENEFITS GROUP, INC. and ABFG is suspended then and in
that event ABFG shall forthwith provide written notice of same to April at
April's Address for Service herein provided and this Agreement shall , in
accordance with said Notice, be immediately suspended provided that ABFG
shall be liable to April for all salaries of April employees directly
performing services on behalf of ABFG for a period of THIRTY (30) days
thereafter, the cost for all transportation in returning said employees to
Canada, that all insurance programs in place for April employees shall be
kept in good standing by ABFG for the duration of this Agreement's
suspension and any costs attributable to ABFG incurred as at the date of
Agreement Suspension by April shall be reimbursed April by ABFG.
4.2 This Agreement may not be suspended for any period of time in excess of
six (6) calendar months from the date of Suspension Notice being posted by
.ABFG subject to the provisions of paragraph 4.7 hereof.
4.3 Any periods of Agreement Suspension shall not increase the length of any
Term or renewal term or affect in any manner whatsoever the dates on which
this Agreement shall be renewed.
4.4 A period of Agreement Suspension shall end upon ABFG providing April with
w7itten notice of same to April's Address for Service herein provided said
written notice to specify the date, which shall not be less than FIFTEEN
(15) days from April's receipt of said Notice, on which the Agreement
Suspension shall end and a revised schedule of personnel requirements and
schedules.
4.5 By way of example, and in no way to be construed as inclusive, examples of
reasons which could lead AMERICAN BENEFITS GROUP, INC. to suspend it's
Agreement with ABFG and hence ABFG to suspend the operation of this
Agreement could include insurrection, riot, war, plague, uprising,
climatic conditions or political and/or social unrest.
4.6 During the period of Agreement Suspension ABFG is not responsible to April
for any payments of any kind or nature save and except for those payments
noted in paragraph 4.1 hereof.
4.7 In the event that this Agreement is not reinstated within six (6) months
then, and in that event this Agreement is at an end, of no further cause
or effect as between the parties hereto and neither party shall make or
advance any claim of any nature or kind against the other.
5.0 APRIL'S DUTIES
5.1 April shall provide qualified "supervisory personnel", as required by
ABFG, in order for ABFG to fulfill it's agreements with third parties,
including AMERICAN BENEFITS GROUP, INC., to supply such personnel to the
third parties mine sites in the Democratic Republic of Madagascar and
elsewhere.
5.2 April shall ensure that it's employees follow, abide and comply with all
Rules and Regulations imposed by mine owners or ABFG on the respective
mine sites and shall further ensure that it's employees obey all laws of
the area in which their work duties may require their attendance.
5.3 April shall ensure that it's employees follow, abide and comply with all
Rules and Regulations imposed by ABFG to govern the day- to -day
operations of each respective mine site.
5.4 April shall ensure that it's employees comply with all laws, regulations
and codes concerning safety standards howsoever established or in place
during the progress of the work and agrees to stop any part of the work at
a mine site or elsewhere until all corrective measures to ensure the
safety of all employees of April or otherwise are carried out.
5.5 April agrees that it will maintain in good standing all required accounts
with governmental Boards of Agencies and further, to make all deductions,
contributions and payments of any kind required to be made by April or
it's employees as required by any legislation in place and further agrees
to hold ABFG harmless in the event of any non-payment of such accounts,
deductions, contributions or payments.
5.6 April recognizes the extremely confidential nature of information coming
to either it's or it's employees attention and to this end agrees with
ABFG that ABFG has the right to conduct any and all security checks on any
or all of April's employees working under this Agreement and that ABFG
may, if it is of the reasonable belief that any of April's employees pose
a reasonable security risk to either April, ABFG or a mine site owner that
it may demand that said April employee not be employed at ABFG sites.
5.7 April shall carry, at it's own cost and expense, Comprehensive General
Liability Insurance in an amount equal to at least THREE MILLION
($3,000,000.000) DOLLARS per occurrence which shall name ABFG as the first
loss payable and further covenants and agrees to save and hold ABFG
completely harmless from any cost or expense arising in favor of any third
party whatsoever as a result of April's or any of it's employees, agents
or representatives actions or inactions of any kind or nature whatsoever.
5.8 ABFG has approved the form of EMPLOYMENT AGREEMENT which April proposes to
use for all employees to be working at ABFG sites, as attached hereto as
Appendix A, and April agrees that prior to any substantial amendment to
said agreements being implemented by April that April shall obtain the
approval of ABFG to said amendments failing which the matter of the
amendment shall be referred to Binding Mediation pursuant to paragraph 8.0
hereunder the scope of the mediation to be solely whether it is reasonable
for ABFG to not approve the proposed amendment having consideration to
good business practice and ABFG's obligations to third parties including
American Benefits Group, Inc...
5.9 April shall immediately and without fail notify ABFG, in writing, at
ABFG's address for service hereunder of any circumstances known to April
which may in any respect be detrimental to April, ABFG, ABFG's business,
or any mine site owner on which April employees are working.
6.0 ABFG DUTIES
6.1 ABFG shall, in consideration for April providing the considerations noted
inparagraph 5.0 hereunder:
a) pay to April the monies noted in paragraph 7.0 hereunder;
b) provide April and April's employees with such guidance and
directions as are necessary for April to carry out it's duties
hereunder;
c) supply all materials, equipment, supplies and tools as are
reasonably required by April employees to perform the work required
by ABFG.
7.0 ABFG PAYMENT TO APRIL
7.1 ABFG shall provide April with a deposit of FIVE THOUSAND ($5,000.00)
DOLLARS to be credited to ABFG from future payments to be made to APRIL by
ABFG and, on monthly payments to be made by ABFG to April will ensure that
April has, at all times, FIVE THOUSAND ($5,000.00) DOLLARS in excess of
ABFG's monthly payment on account to be credited to ABFG's next monthly
payment to be made hereunder.
7.2 It is the intent of this Agreement that ABFG will pay to April each month,
in advance and not in arrears, April's estimated costs and expenses (costs
and expenses being defined in paragraph 11.0 herein) incurred as a direct
or indirect result of this Agreement.
7.3 Direct costs and expenses shall be those expenses incurred by April
relating only with respect to this particular Agreement and includes,
without restricting the generality of the foregone all salaries, travel
expenses and insurance obtained with respect to the employees or work
sites pertaining to ABFG.
7.4 Indirect expenses shall be those costs and expenses incurred by April
relating to those necessary expenses April incurs as a result of carrying
on business and will be pro-rated between ABFG and other clients of April
base on revenues invoiced all of April's clients for any respective month
and shall include but not be limited to office rent, office insurance,
basic communication expenses, accounting fees and the like.
7.5 All expenses, be they direct or indirect, shall be reasonable and in the
event that the parties hereto cannot agree on the reasonableness of the
expense, the extent to which the expense should be pro-rated or any other
dispute concerning the expense then and in that event the issue shall be
referred to binding Mediation pursuant to paragraph 8.0 herein.
7.6 In addition to the foregone reimbursement of expenses ABFG agrees to pay
to April a monthly administration fee of TWO THOUSAND ($2,000.00) DOLLARS.
7.7 During the term and any renewal term of this Agreement April agrees that
it shall actively seek out additional contracts with other entities so
that ABFG's pro-rated share of indirect expenses is reduced.
7.8 On or before the 30th day of each and every month of the term or renewal
term of this Agreement as the case may be April shall submit to ABFG an
actual Statement of Expenditures for the immediately preceding month
relating the direct and indirect costs and expenses paid by April to
further ABFG's goals hereunder (inclusive of any pro-rated amounts)
together with an estimate of said expenses to be incurred by April in the
next second subsequent month.
7.9 Unless ABFG objects, within SEVEN (7) DAYS of it's receipt of April's
Statement of Expenditures, to any of the costs or expenses noted in
paragraph 7.8 herein ABFG shall, on or before the 30th day of the next
month pay to April the entirety of April's said estimated expenses for the
second subsequent month plus or minus a reconciliation of the Statement of
Expenditures submitted to ABFG for the immediately preceding month (as at
the date of April's submission of Statement of Expenditures to ABFG) it
being agreed by and between the parties hereto that in the event that
ABFGs reconciliation of April's estimated expenses differs from actual
expenses in ABFG's favor that ABFG will be at liberty to deduct said
overpayment from it's monthly remittance to April hereunder..
7.10 In the event that ABFG objects to any of April's actual expenditures made
or estimated expenses to be made in the future on the basis that the
expenses do not relate to ABFG business, are not accurate, are not
properly pro-rated or for any other reason ABFG shall advise April of said
objection, in writing to April's address for service hereinafter provided,
within SEVEN (7) Days of it's receipt of April's Statement of Expenditures
and that failing resolution of the issue either party may submit the issue
to Mediation pursuant to paragraph 8.0 herein and the decision of the
mediator will be binding on all parties hereto.
7.11 Upon approval of April's estimated expenses and Statement of Expenditures
ABFG shall pay all sums owing to April by Wire Transfer to a Canadian
Chartered Bank of April's choosing, the particulars of which will be
supplied ABFG from time to time by April, all said funds to be received by
April on or before the 5th business day of the month immediately
subsequent to the date on which the expenses and expenditures were to have
been received by ABFG or within THIRTY (30) days of ABFG's actual receipt
of expense documentation from April in the event that April does not
provide ABFG with the expense documentation on the 5th business days of
the preceding month as noted in paragraph 7.8 hereunder..
7.12 April hereby grants ABFG the right to audit the books of April at any time
to verify the expenses paid by-April on ABFG business or for any other
purpose and in the event that the audit shows that the monies paid by ABFG
to April exceed, by greater than ONE (1 %) PER CENT, the amount which
ought to have been paid April by ABFG then and in that event April shall
within FOURTEEN (14) DAYS of April being served with a true copy of the
audit results either repay said sums to ABFG and ABFG's cost of performing
the audit or submit the issue to binding mediation pursuant to paragraph
8.0 hereafter...
8.0 MEDIATION
8.1 The parties hereto hereby agree each with the other that prior to either
commencing an action in any Court against the other that they will submit
the dispute to mediation pursuant to the Statutes of the Province of
Alberta then in force.
8.2 The parties agree that the venue for said mediation will be the City of
Calgary in the Province of Alberta.
8.3 Save and except where the contrary is specifically noted herein the
mediated resolution shall not be binding upon the parties hereto and
neither party shall disclose, refer or mention the mediation process at
any subsequent Court process initiated.
9.0 ASSIGNMENT
9.1 April shall not, without the approval of ABFG first hand obtained assign
it's interest or any portion thereof of this Agreement to any other party
ABFG's approval to said assignment which may be unilaterally or
unreasonably withheld.
9.2 ABFG shall be able to assign it's interest or any portion thereof of this
Agreement to any other party by providing April with written notice of
same at April's address for service hereinafter provided.
10.0 ADDRESS FOR SERVICE
10.1 April's address for service hereunder shall be:
000, 000-0xx Xxxxxx X.X., Xxxxx 000
Xxxxxxx, Xxxxxxx
X0X 0X0
10.2 ABFG's address for service hereunder shall be:
000, 000 -0xx Xxxxxx X.X.
Xxxxxxx, Xxxxxxx
X0X 0X0.
10.3 Either party hereto may change it's address for service hereunder by
causing the other to be served with notice of said change of address by
prepaid registered post to the other's address for service either noted
herein or which is amended pursuant to this paragraph 10.3.
11.0 MISCELANEOUS
11.1 The law of the Province of Alberta shall apply to this Agreement.
11.2 Each party hereto by their execution hereof covenants, warrants and agrees
with the other that the entering of this agreement is a valid, proper and
approved corporate action.
11.3 Each of the parties hereto agrees to abide by all laws whether enacted by
the Province of Alberta or other jurisdiction in which the entity operates
or carries on business.
11.4 It is agreed by the parties hereto that April and ABFG will cooperated
each with the other in obtaining work Visa's and other like documents for
April employees to work on ABFG projects in the Democratic Republic of
Madagascar or elsewhere and to this end agree that it may be necessary for
April employees to be assigned or seconded to other corporate entities in
order for them to work on ABFG projects.
11.5 The venue for any civil action to be commenced by either party hereto
against the other shall be the corporate residency of the Defendant party
in the law suit but the laws of the Province of Alberta shall apply in all
disputes between the parties hereto save and except that this agreement
shall not be construed strictly against ABFG in any respect.
11.6 All references in this Agreement to dollars shall be CANADIAN DOLLARS.
11.7 For the purposes of this Agreement "expense" shall be defined at cost or
calculated cost.
11.8 For the purposes of this Agreement "cost" shall be defined as an actual
amount paid to an arm's length third party.
11.9 For the purposes of this Agreement "calculated cost" shall be defined as a
calculation from assumptions u9ing costs as approved by ABFG.
11.10 For the purposes of determining expenses or costs to be pro-rated between
ABFG and other clients of April it is expressly understood by and between
the parties hereto that ABFG shall only be liable to April for a pro-rated
amount if the expense or cost relates to April's performing duties for
ABFG or in Aprils duties hereunder.
11.11 This Agreement is binding on all parties hereto, including their assigns
thereunder and may only be amended in writing executed by both parties.
WHEREFORE THE PARTIES AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT IN ALL
RESPECTS AS EVEIDENCED BY THEIR EXCUTION HERREOF AT THE CITY OF CALGARY, IN THE
PROVINCE OF ALBERTA THIS 17th DAY OF MARCH 1999.
AMERICAN BENEFITS GROUP, LTD.
Per: /s/ Xxxxx X. Xxxxxxxxxxx
-------------------------------------
Xxxxx X. Xxxxxxxxxxx
President and Chief Executive Officer
APRIL MINING GROUP, LTD
Per: /s/ Xxxxx Xxxxxxx
-------------------------------------
Xxxxx Xxxxxxx
President
96
