Amendment To The Management Services Agreement
Amendment
To
The
THIS AMENDMENT (the “Amendment”), entered into
effective the 1st day of
January 2010, (the “Effective
Date”) is to the Management Services Agreement entered into on February
6, 2006, with an effective date of February 1, 2006, as amended on August 31,
2007, and on December 21, 2007 (the “Agreement”), by and between
White Mountain Titanium Corporation (“WMTC”) and Xxxxxxx X.
Xxxxxxxxx (“Xx.
Xxxxxxxxx”).
RECITALS:
A. WMTC
is intent on retaining senior management, including Mr. Kurtanjek, through
providing competitive compensation; and
B.
The parties hereto desire to extend the term of the Agreement to
secure the continued performance of Mr. Kurtanjek; and
C.
Section 7(d) of the Agreement grants to the parties the right to amend the
Agreement upon approval of each of the parties thereto.
NOW, THEREFORE, for additional
consideration of the parties, the receipt and sufficiency of which is hereby
acknowledged by each party, the parties hereto agree as follows:
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1.
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Section
1(e) of the Agreement is amended to read as
follows:
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Conflicts of
Interest. During the term of this Agreement Mr. Kurtanjek
shall not carry on or be engaged in or concerned with or advise in the operating
of any other business or enterprise which is in conflict with his obligations
under this Agreement or in competition with WMTC or its
subsidiary. Nothing contained herein shall prevent Mr. Kurtanjek from
managing his own personal investments and affairs, including, but not limited
to, his investment in Chinuka Limited and any subsidiary thereof.
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2.
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Effective
January 1, 2010, Section 2(a) of the Agreement is amended to read as
follows:
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Monthly
Fee. In consideration of the services provided by Mr.
Kurtanjek as set forth herein, WMTC shall pay to him US$15,410 per month, which
amount shall be pro rated for any partial month of service. Payments
hereunder shall be made on the first business day following the month of
service.
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3.
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Section
2(c) is added to the Agreement to read as
follows:
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Extension
Bonus. For and inconsideration of Mr. Kurtanjek entering into
this Amendment, WMTC shall grant to him a five-year incentive warrant to
purchase up to 1,000,000 shares of common stock of WMTC at US$1.50 per share and
subject to the further terms and conditions set forth in the form of the warrant
attached hereto as Exhibit A and incorporated herein.
4. Section
2(d) is added to the Agreement to read as follows:
Share Compensation
Pool. Mr. Kurtanjek shall be entitled to participate in the
annual share compensation pool and shall receive not fewer than 25 % per year
from such pool.
5. Section
3 of the Agreement is amended to read as follows:
Term and
Renewal. The term of this Agreement shall be for a period of
five years from January 1, 2010, through December 31, 2015 (the “Original Expiration Date”),
unless it is terminated earlier as provided herein. Beginning on the
Original Expiration Date, and on each anniversary thereafter, unless it is
terminated earlier as provided herein or WMTC delivers written notice to Mr.
Kurtanjek of its intention not to extend the Agreement at least six (6) months
before the Original Expiration Date or each anniversary date thereafter, the
term of this Agreement shall automatically be extended for additional one-year
terms. The restrictive covenants in paragraph 5 hereof shall survive
the termination of this Agreement.
6. Section
4(a) of the Agreement is amended to read as follows:
Termination Without
Cause. Either WMTC or Mr. Kurtanjek may terminate this
Agreement at any time without cause (as defined below), provided that it or he
gives written notice of termination to the other party at least six (6) months
before the date of such termination.
7. Section
4A of the Agreement is amended to read as follows:
Termination
Upon Change of Control
In the
event of termination upon a change of control of WMTC, the following provisions
shall apply:
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(a)
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“Termination
Upon Change of Control” means:
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(i) any
termination of the employment of Mr. Kurtanjek by WMTC without cause during the
period commencing on or after the date that WMTC first publicly announces a
definitive agreement that would result in a Change of Control (as defined
below), even though still subject to approval by WMTC’s stockholders and other
conditions and contingencies; or
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(ii) any
resignation by Mr. Kurtanjek based on a diminution of responsibilities where (1)
such diminution of responsibilities occurs during the period commencing on or
after the date that WMTC first publicly announces a definitive agreement that
would result in a Change of Control (as defined below), even though still
subject to approval by WMTC’s stockholders and other conditions and
contingencies, and ending on the date which is twelve (12) months following the
Change of Control, and (2) such resignation occurs within one-hundred and twenty
(120) days following such diminution of responsibilities.
(b) The
term “Termination Upon Change of Control” shall not include any other
termination, including a termination of Mr. Kurtanjek (i) by WMTC for cause;
(ii) by WMTC as a result of the disability of party; (iii) as a result of the
death of the party; or (iv) as a result of the voluntary termination of
employment by the party for reasons other than a diminution of
responsibilities.
(c) “Change
of Control” means:
(i) any
“person” (as such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”)), other than a trustee or
other fiduciary holding securities of WMTC under an employee benefit plan of
WMTC, becomes the “beneficial owner” (as defined in Rule 13d-3 promulgated under
the Exchange Act), directly or indirectly, of securities of WMTC representing
30% or more of (A) the outstanding shares of common stock of WMTC or (B) the
combined voting power of WMTC’s then-outstanding securities;
(ii) WMTC
is party to a merger or consolidation, or series of related transactions, which
results in the voting securities of WMTC outstanding immediately prior thereto
failing to continue to represent (either by remaining outstanding or by being
converted into voting securities of the surviving or another entity) at least
fifty (50%) percent of the combined voting power of the voting securities of
WMTC or such surviving or other entity outstanding immediately after such merger
or consolidation;
(iii) the
sale or disposition of all or substantially all of WMTC’s assets (or
consummation of any transaction, or series of related transactions, having
similar effect);
(iv)
there occurs a change in the composition of the Board of Directors of WMTC
within a two-year period, as a result of which fewer than a majority of the
directors are incumbent directors;
(v) the
dissolution or liquidation of WMTC; or
(vi) any
transaction or series of related transactions that has the substantial effect of
any one or more of the foregoing.
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(d) In
the event of termination upon a Change of Control, Mr. Kurtanjek shall receive
the following compensation: (i) immediate payment of a severance
amount equal to three times the highest annual base cash compensation paid Mr.
Kurtanjek; (ii) the immediate vesting of any outstanding unvested options,
warrants, or other convertible instruments and the immediate vesting of any
unvested shares held by Mr. Kurtanjek; (iii) the pro rata amount of any bonuses
or share compensation pool for which Mr. Kurtanjek is eligible; (iv) the
extension of the exercise period of any options, warrants, or other convertible
instrument for at least six months following such termination.
8. Section
7(a) of the Agreement is revised to provide the following address changes for
WMTC and Xxxxxx X. Xxxxx:
If to WMTC to:
Xxxxxxx
Xxxxxx 000, Xxxxxxx 000
Xxx
Xxxxxx, Xxxxxxxx
Xxxxx
Attn: _________________
FAX:
_________________
With a copy (which shall not constitute
notice) to:
Xxxxxx X. Xxxxx
Attorney
at Law
0000
Xxxxxxx Xxxxxx
Xxxxx
000
Xxxxx
Xxxxxx, XX 00000
FAX: (000)
000-0000
9. Except
as amended hereby, the Agreement shall continue to be, and shall remain, in full
force and effect. Except as provided herein, this Amendment shall not
be deemed (i) to be a waiver of, or consent to, or a modification or amendment
of, any other term or condition of the Agreement or (ii) to prejudice any right
or rights which the parties may now have or may have in the future under or in
connection with the Agreement or any of the instruments or agreements referred
to therein, as the same may be amended, restated, supplemented or otherwise
modified from time to time.
10. The
terms of the Agreement are incorporated herein by reference and shall form a
part of this Amendment as if set forth herein in their entirety.
[SIGNATURE
PAGE FOLLOWS]
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IN WITNESS WHEREOF, each of the parties
hereto has executed this Amendment the respective day and year set forth
below.
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White
Mountain Titanium Corporation
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Date: February
7, 2010
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By
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/s/ Xxxxx Flower
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Xxxxx
Flower, Executive Chairman
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Date: February
7, 2010
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/s/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx
X. Xxxxxxxxx,
Individually
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