MANAGEMENT SERVICES AGREEMENT
This Management Services Agreement dated for reference as of the 16th day of
July, 2005.
BETWEEN:
OLYMPUS PACIFIC MINERALS INC., a British Columbia company having its
head office at 00 Xxxx Xx Xxxx, Xxxxxxx Xxxxxxx X0X XX0, Xxxxxx
(the "Company")
OF THE FIRST PART
AND:
ORANGUE HOLDINGS LIMITED, a New Zealand company having its registered
office at Xxxx Xxxxxx, Chartered Accountants, 00 Xxxxxx Xxxxxx,
Xxxxxxxx, Xxx Xxxxxxx
(the " Consultant ")
OF THE SECOND PART
BACKGROUND:
A. At the request of the Company the Consultant has agreed to provide a
manager ("Manager") for the Company as may be required by the Company for
the proper management and advancement of the Company's business, upon the
terms and conditions set out below.
WHEREAS:
A. Company wishes to retain the services for a fixed two year period of the
Consultant for the provision of the Manager to assume the position of the
Chief Executive Officer of the Company, and the Consultant and the Company
wish to document the basis on which the Consultant will continue to provide
such services to the Company.
B. The Consultant represents that it possesses the necessary expertise to
provide management and consulting services and shall be responsible for the
employment or engagement of the Chief Executive Officer to be made
available to the Company for the purposes of providing the services
pursuant to this agreement and unless otherwise agreed shall pay all
remuneration payable to the Manager and keep all records in relation to
such personnel and make all deductions from the remuneration as required
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by law. The Company shall have the right to approve the Manager made
available to it (such approval not to be unreasonably withheld)
C. At the request of the Company the Consultant has agreed to initially
provide its employee Xxxxx Xxxxxxxxx Seton for the position of Manager.
Should the Consultant wish to replace Xxxxx Xxxxxxxxx Seton with another
employee it can only do so with the written approval of the Company.
D. Consultant and the Company have agreed to enter into this management
services agreement to ensure that the Consultant will continue to provide
services to the Company and further to evidence the compensation and other
benefits to be received by the Consultant in respect to such services.
NOW THEREFORE, in consideration of the mutual covenants and premises herein
contained, in consideration of the Consultant continuing to provide its services
to the Company, and for other good and valuable consideration (the receipt and
sufficiency of which are hereby acknowledged by the parties) the Consultant 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);
(b) "Board" means the Board of Directors of the Company;
(c) "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, subparagraph or other subdivision;
(e.) The words "Set Objectives" refers to the corporate and operational
objectives mutually set and agreed by the Board and the Consultant;
(f.) "Term" means the period of two years from the date hereof;
(g.) all references to currency mean United States currency;
(h.) a reference to an entity includes any entity that is a successor to
such entity;
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(i) the headings are for convenience only and are not intended as a guide
to interpretation of this Agreement or any portion hereof;
(j) 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; and
(k) the phrase "person acting jointly or in concert" includes each and
every person described in Section 96(1) of the Securities Act (British
Columbia), as amended from time to time.
2. Engagement
(a) The Company hereby engages the Consultant for a fixed two year period
to provide the Manager as the Chief Executive Officer of the Company
and the Consultant hereby accepts such engagement by the Company upon
and subject to the terms and conditions hereinafter set forth.
(b) The Consultant agrees that the Manager will serve as a Director and/or
an officer of associated or affiliated companies if so requested by
the Directors as long as this Agreement remains in force.
(c) Such engagement will commence on the date of this Agreement and will
continue until terminated as hereinafter provided.
(d) The Manager will coordinate and oversee the Company's general
management, as stipulated by the Board, with full authority over such
functions subject to the directions of the Board or such person or
committee of the Board as is nominated by the Board. The Manager's
duties and authority shall be those commonly associated with the above
office and as assigned by the Board.
(e) For the purposes of conducting Company business the Company will
provide office facilities for the Manager in Toronto, Canada, however
the Manager shall be present at and perform his duties primarily from
his base in Auckland, New Zealand but, recognising that the position
will require a considerable level of international travel for
management of operations, fund-raising and promotional activities, the
Manager shall be present at and perform his duties in other
jurisdictions with such frequency and for such duration as is
reasonably necessary for the proper and timely performance of the
Manager's duties hereunder, provided that the Consultant must first
consent to any relocation of the Manager for a term of greater than
one (1) month. However, where a change of control as described in
Section 2(h) occurs and the Consultant continues providing services to
the Company, the primary location of the Manager's provision of
services shall not be permanently assigned or transferred without
prior consent of the Consultant.
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f) The Manager shall provide on average 40 hours of his time each week,
attention and ability during these hours to the business and affairs
of the Company and shall well and conscientiously serve the Company
and use his best efforts to promote the interests of the Company
during the continuation of his services hereunder. Provided that there
is no conflict with the Manager's obligations pursuant to this
Agreement, with prior notice to and the consent of the Chairman of the
Board, the Manager may act as a director for other corporations and
organizations. It is acknowledged and agreed that Xxxxx Xxxxxxxxx
Seton is an executive director of Paua Limited, Huia Properties 2
Limited, Claymore Technology Limited, Answerview Systems Limited and
Indochina Limited.
(g) The Consultant will perform all services on behalf of the Company
hereunder as an independent contractor, and neither the Consultant nor
Manager will 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. To the extent necessary to permit
the Consultant to perform the services required hereunder, the Company
will provide evidence of the authority of the Manager or his
representatives as agent for the Company hereunder.
(h) In the event that any person, or any person and its affiliates, as
such terms are defined in the Business Corporations Act (Yukon),
begins a tender or exchange offer, circulates a proxy to shareholders
or takes other steps to effect a takeover of the control of the
Company, the Consultant agrees that the Manager will not voluntarily
leave the employ of the Consultant, and will render services to the
Company in accordance with his position and in the best interests of
the shareholders, until such person has abandoned or terminated
efforts to effect a takeover of control of the Company or until such
takeover of control of the Company has occurred. For purposes of this
Agreement, takeover of control shall be evidenced by the acquisition
by any person, or by any person and its affiliates, other than Zedex
Minerals Limited or an affiliate thereof, as such terms are defined in
the Business Corporations Act (Yukon), and whether directly or
indirectly, of common shares of the Company which, when added to all
other common shares of the Company at the time held by such person and
its affiliates, totals for the first time 50% or more of the
outstanding common shares of the Company.
3. Compensation
(a) On presentation of an invoice for services rendered under this
Agreement, the Consultant will be paid a monthly fee of US$12,500
(yielding an "Annual Fee" of US$150,000), subject to adjustments made
pursuant to the terms of this Agreement (the "Fee"). The Consultant
acknowledges that all taxes and other charges arising in relation to
the remuneration of the Consultant are the responsibility of the
Consultant. The Consultant agrees and indemnifies the Company against
any such taxes or other charges arising under this agreement.
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(b) While the Consultant continues to provide services to the Company
pursuant to this Agreement, the Board or a committee of the Board will
carry out a half yearly review of the Consultant's performance which
will be measured against Set Objectives. Based on this review the
Board may at its discretion pay a halfyearly incentive bonus of up to
50% of the Annual Fee each January and July. The Consultant or Manager
will also be entitled to participate in any other profit sharing or
bonus program from time to time established by the Company, to such
extent and in such amounts as the Board may from time to time
determine.
(c) In addition to the foregoing, the Company will reimburse the
Consultant for all travel expenses, including car rentals, food and
lodging and sundry expenses, including office and office equipment,
telephone costs, subscriptions for relevant news and industry
publications, expenses for assignments, relocations and transfers, any
relevant industry association or professional institution fees and
subscriptions and all other expenses actually, necessarily and
properly incurred in connection with the business of the Company or
any of its subsidiaries.
(d) The Consultant shall submit bills and vouchers reasonably satisfactory
to the Board supporting all requests for reimbursement under
subsection (c).
(e) The Manager will be entitled to participate in any pension, health,
medical, insurance or other benefit plans or retirement rights from
time to time established by the Company and to which executives of the
Company or any of its subsidiaries or affiliates are from time to time
entitled.
(f) Firstly, on the date of this Agreement and secondly, on the
achievement of Set Objectives; subject to regulatory acceptance the
Consultant will receive on each of these two occasions options to
purchase at any time up to and including a date five years from the
date of grant 1,000,000 shares in the capital of the Company at 32c.
(g) The options will be non-transferable except to an entity controlled by
the Consultant, and will be fully vested on granting and exercisable
upon granting.
(h) If the Manager dies during the term of this Agreement all options
which have been granted to that date will immediately become
exercisable for a period equal to the earlier of the expiry date of
such options or twelve {12) months following the date of the Manager's
death.
4. Holidays
During the term of this Agreement the Manager will be entitled to four
weeks of annual holidays (accruing monthly) during which the Company
will pay the Consultant the normal Fee. None of such holidays will be
carried for a period of more than 24 months. The Consultant may in
lieu of accrued annual holidays and at its sole discretion accept on
behalf of the Manager a cash payout equal to the Fee that would be
payable for those days.
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5. Termination
(a) The Consultant may terminate this Agreement and the services being
provided by him hereunder by giving the Company at least three (3)
months' written notice (the "Consultant's Termination Notice"),
provided that the Company shall, subject to Section 5(h), have the
right to give written notice to the Consultant that the Company is
waiving the full notice period and is permitting this Agreement and
the services of the Consultant to be terminated upon a date that is
less than three months after the date of the Consultant's Termination
Notice as determined by the Company and further provided that the
Consultant shall not be entitled to a severance payment and all Fees
payable to the Consultant hereunder and all other obligations of the
Company to the Consultant hereunder shall cease upon such termination
notwithstanding the provisions of Section 2 or any other Section
hereof.
The Consultant shall be entitled to terminate this agreement
immediately upon serving written notice to the Company in the event
that
o a receiver or liquidator is appointed in respect of the
Company; or
o the Company fails to pay any moneys payable hereunder
within 14 days of the due date and shall further fail to
pay such moneys within 14 days of being required to do so
by the Consultant.
(b) This Agreement will terminate once the Board agrees that the Set
Objectives have been achieved or upon expiry of the Term; whichever is
the earlier. In the event of termination upon achievement of the Set
Objectives prior to the expiry of the Term the Consultant shall be
entitled to all remuneration and options it would have received had
this Agreement have remained in full force and effect for the Term.
(c) The Company may at any time terminate this Agreement and the
engagement of the Consultant without cause. In this event the Company
shall be obligated to provide the Consultant with a severance payment
in lieu of notice. Such payment shall be payable on the fifth day
following the date of notice of termination (the "Company's Notice of
Termination") and shall consist of the following:
(i) the Consultant's full fee through to the date of termination at
the amount in effect at the time the Company's Notice of
Termination was given, the amount of any expenses reimbursable
under Section 3(c), plus an amount equal to the amount, if any,
of any awards previously made to the Consultant which have not
been paid;
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(ii) in lieu of further Fees for periods subsequent to the date of
the Company's Notice of Termination, a severance payment
o equal to three months of the Consultant's then existing
annual Fees pursuant to Section 3 should termination occur
within the first 12 months of this Agreement.
o equal to six months of the Consultant's then existing
annual Fees pursuant to Section 3 should termination occur
after the first 12 months of this Agreement.
(iii) the Consultant's options on shares of the Company shall remain
in full force and effect for the earlier of the expiry date of
such options or twelve (12) months following the Company's
Notice of Termination and the option agreements shall be deemed
to have been amended, to the extent required, to the effect that
any provision which would otherwise terminate such options as a
result of the termination of the Consultant's services shall be
null and void.
Termination of the Agreement in accordance with this Section shall
relieve the Company from any and all obligation, liability or claim by
the Consultant, exclusive of monies owing to the Consultant up to the
date of termination.
(d) The Company may at any time terminate the services of the Consultant
and this Agreement for any just cause that would in law permit the
Company to, without notice, terminate the Consultant, in which event
the Consultant shall not be entitled to a payment in lieu of notice,
but shall be entitled to receive the full amount of the Consultant's
Fees due through to the date of the notice of termination, and any
options granted to the Consultant will be immediately terminated.
(e) This agreement shall be deemed to have been terminated by the Company
if: without the written agreement of the Consultant, the nature of the
duties, requirements and arrangements of the Consultant are
substantially changed from those set out in Section 2 such that the
nature of the work that is required to be performed is not work which
a Chief Executive Officer of a publicly listed mining company would
ordinarily be required to attend to, in which event the Company shall
be obligated to provide the Consultant with a severance payment as
described in Section 5 (c) (i) (ii) and (iii).
(f) Any termination by the Company pursuant to Section 5 (c) or (d) shall
be communicated by written Notice of Termination. For purposes of this
Agreement, a "Notice of Termination" shall mean a notice which shall
indicate the specific termination provision of this Agreement relied
upon and, in the case of a notice of termination for cause under
Section 5(d), shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for
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termination of the Consultant's employment. For purposes of this
Agreement, no such purported termination shall be effective without
such notice.
(g) On the termination of this engagement for any reason, the Consultant
agrees to concurrently deliver up to the Company the Manager's
resignation as a Director of the Company and any subsidiary of the
Company, effective immediately, together with 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.
(h) Notwithstanding the provisions of Section 5(a) the parties acknowledge
that, given the particular enterprise and business of the Company it
is crucial and necessary that the Consultant maintain a close
relationship with the Board based on mutual loyalty, respect and
trust. Accordingly, the Company agrees that if the Consultant elects
to resign based on the sole reason that there has been a takeover of
the control of the Company (as defined in Section 2(h)), then the
Consultant may give notice of resignation in writing to the Board. The
notice of resignation pursuant to this Section must he in writing,
must cite this Section 5(h) and must contain at least one month's
notice and not more than two months' notice. The Consultant must
exercise this right within six months of the takeover of control as
referred to herein (the "Date of Resignation"). The Company shall be
obligated to provide the Consultant with a severance payment on the
fifth day following the Date of Resignation which shall consist of the
fol lowing:
(i) the Consultant's Fees through to the Date of Resignation at the
amount in effect at the time notice of termination or notice of
resignation was given, the amount of any expenses reimbursable
under Section 3(c), plus an amount equal to the amount, if any,
of any awards previously made to the Consultant which have not
been paid; and
(ii) in lieu of further Fees for periods subsequent to the Date of
Resignation, an amount equivalent to one years' Fee and bonuses,
calculated on the basis of the Consultant's -
o monthly Fees at the highest rate in effect during the six
month period immediately preceding the Date of Resignation
multiplied by twelve, exclusive of any other sundry
benefits, and the
o highest half yearly bonus paid in the previous 24 months
multiplied by two;
(iii) subject to Section 5(h)(iv) below, in lieu of common shares of
the Company issuable upon exercise of options, if any,
previously granted to the Consultant under the Company's
incentive programs and remaining
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unexercised on the fourth day following the Date of Resignation,
which options shall be cancelled upon the payment referred to
herein, a cash amount equal to the aggregate spread between the
exercise price of all options held by the Consultant, whether or
not then fully exercisable, and the higher of (i) the average of
the closing prices 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 30 days preceding the
Date of Resignation or (ii) the average price actually paid for
the most highly priced one percent (1%) of the Company's common
shares, however and for whatever reason by any person who
achieves control of the Company as such term is defined in
Section 2(h); and
(iv) notwithstanding Section 5(h)(iii), the Manager shall have the
right exercisable up to the fourth day following the Date of
Resignation, to elect to waive the application of Section
5(h)(iii) following termination of the Consultant's services.
The Manager may exercise this election on or before 5:00 p.m.
Vancouver time on such fourth day by delivering a notice in
writing to the Company of such waiver whereupon:
(i) the Consultant's options on shares of the Company shall
remain in full force and effect for one year from the date
of termination and in accordance with the original terms
but shall be deemed to have been amended to the effect that
any provision which would otherwise defer exercise of such
options or terminate such options as a result of the
termination of the Consultant's services shall be null and
void; and
(ii) the Company shall be relieved of any obligation in
connection with termination of the Consultant's employment
to make the payment in section 5(h)(iii).
The Consultant agrees to accept such payment in full satisfaction of
any and all claims the Consultant has or may have against the Company
and the Consultant agrees to release the Company with respect to the
same upon payment of said sum, except monies owing by either party to
the other up to the Date of Resignation.
(i) The Consultant shall not be required to mitigate the amount of any
payments provided for under any paragraph of this Section by seeking
other engagements or otherwise nor shall the amount of any payment
provided for in this Section be reduced by any other compensation
earned by the Consultant as a result of engagement by another client
after the date of termination or otherwise.
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(j) The Company shall have full rights to offset any money properly due by
the Consultant to the Company against any amounts payable by the
Company to the Consultant hereunder.
6. Successors, Binding Agreement
This Agreement shall enure to the benefit of and be binding upon and shall be
enforceable by and against the Company's successors and assigns. 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
Consultant, 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 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 paragraph 6 or which otherwise becomes bound by all the terms and
provisions of this Agreement by operation of law. This Agreement shall enure to
the benefit of and be enforceable by the Consultant's heirs, administrators,
executors and successors to the extent permitted herein.
7. Notices
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 on the first following business day when delivered or on the fifth
following business day when mailed in Canada by registered or certified mail,
return receipt requested, postage prepaid, addressed as follows:
(a) If to the Consultant:
X/- Xxxxxxx Xxxxxxx
Xxxxxxxxxx
Xxxxxxx Xxx 00000
XXXXXXXX
Fax: x000 000 0000
(b) If to the Company:
Olympus Pacific Minerals Inc.
Xxxxx 000, 00 Xxxx Xxxxxx Xxxx
Xxxxxxx, XX
Xxxxxx X0X 0X0
Fax x0 000 000 0000
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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.
8. Governing Law
The validity, interpretation, construction and performance of this Agreement
shall be governed by the laws of the Province of Ontario.
9. Miscellaneous
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 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 of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time.
10. Severability
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.
11. Counterparts
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.
12. Assignability
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 Section 6 above. Without limiting the foregoing, the Consultant'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 Consultant may
assign its rights and obligations pursuant to this Agreement to a company or
other entity wholly controlled by the Consultant which undertakes to the Company
to make the Consultant's services available to the Company on identical terms
and conditions as this Agreement.
13. Competitive Activity
During the term of this Agreement and for a period ending one (1) year following
the date of termination of this Agreement, the Consultant shall not engage in
any Competitive Activity.
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For purposes of this Agreement, "Competitive Activity" shall mean the
Consultant'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 13, mineral exploration activity or a mining operation shall be
considered in substantial and direct competition with the Company if such
mineral exploration or mining operation is conducted within the countries of
Laos or 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 business operation thereof, other than in
connection with a Competitive Operation of such enterprise. The Company
specifically acknowledges that the Consultant is involved with the entities
described in Section 2(f), and may also provide services to Zedex Minerals
Limited, and the Company consents to such involvements.
14. Confidentiality
The Consultant shall not either during the term of this Agreement or at any time
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
Directors of the Company and shall not without the written consent of the
Company either during the continuance of this Agreement or at any time
thereafter use for its 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 Consultant agrees, during the term of this Agreement and at
all times thereafter to keep confidential all information and material provided
to it 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. Each of the Consultant and the Company agree to keep the
financial terms of this Agreement confidential, except to the extent as may be
required for compliance with applicable regulatory and securities rules,
regulations and laws.
15. Time of the Essence
Time shall be of the essence of this Agreement,
16. Entire Agreement
This Agreement represents the entire agreement between the Consultant and the
Company concerning the subject matter hereof and supersedes any previous oral or
written communications, representations, understandings or agreements with the
Company or any of its officers or agents.
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17. Limitation on Services
The Consultant will not provide or be required to provide legal advice or legal
services in connection with any services provided to the Company under this
Agreement.
18. Indemnity
To the full extent allowed by law, the Company shall indemnify and save the
Consultant harmless:
(a) from and against any and all claims of every nature and kind
whatsoever which from and against any and all claims of every nature
and kind whatsoever which may be made against him by any person, firm,
corporation, government, or by any governmental department, body,
commission, board, bureau, agency or instrumentality including the
Crown in any of her capacities, arising out of or in any way connected
with the management, operation, activities or existence of the
Company;
(b) from and against any and all liability, losses, damages, costs,
charges, expenses, fines and penalties which the Consultant may
sustain, incur or be liable for including, without limitation, any
amount paid to defend or settle an action or satisfy a judgement, in
consequence of him acting as an officer and/or director of the Company
whether sustained or incurred by reason of his negligence, default,
breach of duty, breach of trust, failure to exercise due diligence or
otherwise in relation to the Company; and
(c) in particular, and without in any way limiting the generality of the
foregoing, from and against all liabilities and penalties, at any time
imposed upon the Consultant or any claims at any time made against the
Consultant under or by virtue of any provision in any law or
regulation which in any way involves the affairs or business of the
Company.
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.
by its authorized signatory
Per:
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ORANGUE HOLDINGS LIMITED
by its authorized signatory
Per:
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