EXHIBIT 4.10
CONSULTING AGREEMENT WITH XXXXX XXXXX
DATED FEBRUARY 16, 2004
CONFIDENTIAL
CONSULTING AGREEMENT
THIS AGREEMENT made as of the 16th day of February 2004
BETWEEN:
Xxxxx X. Xxxxx
0000 00xx Xxxxxx Xxxxx
Xxxxxxxxx, XX X0X 0X0
(hereinafter called the "Consultant")
OF THE FIRST PART
AND:
Amera Resources Corporation
Suite 709 - 000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX X0X 0X0
and/or any of its subsidiary and affiliated companies,
(hereinafter called the "Company")
OF THE SECOND PART
WHEREAS:
A. The Company is desirous of engaging the Consultant who is ready,
willing and able, to carry out and provide Exploration and Geological Management
services (the "Services") on the terms and conditions, herein set forth.
NOW THEREFORE THIS AGREEMENT WITNESSES THAT, in consideration of the premises
and of the sums herein provided to be paid by the Company to the Consultant, and
of the mutual covenants and undertakings to be performed hereunder, the parties
agree as follows:
ARTICLE I
AGREEMENT TO PROVIDE CONSULTING SERVICES
1.01 The Consultant will make himself available to carry out and provide the
Company the Services described in Schedule "A" hereto.
1.02 The Consultant will carry out the Services in consultation with the
representatives of the Company duly appointed in writing, and covenants to
conduct the Services in a businesslike manner, in keeping with professional
practices in the industry and in a safe and lawful manner.
ARTICLE II
REPORTING
2.01 The Consultant will, as directed in writing, provide the Company with
regular progress reports, in such form as the Company may reasonably require as
outlined in Schedule "A". All reports and copies thereof are to be directed to
the Company to the attention of the Chairman of the Company.
2.02 The information contained in such reports will be the exclusive
property of the Company.
CONFIDENTIAL
2.03 The reports and advice of the Consultant will not be used by the
Company for purposes of inducing investment to be made in the Company unless the
consent of the Consultant thereto is first given in writing, such consent not to
be unreasonably withheld.
ARTICLE III
INDEMNIFICATION
3.01 In the event the Company shall use the advice or report(s) of the
Consultant in any way as an inducement or representation to others to rely
thereon without the prior written consent of the Consultant and such holding out
or representation or inducement shall become the subject of any claim for any
loss, demand, cost, damage, action, suit or proceeding whatsoever, the Company
covenants to indemnify and save the Consultant harmless therefrom it being
understood that such indemnification shall survive termination of this Agreement
for a period of two years.
3.02 The Consultant shall indemnify and hold the Company harmless against
any claim for any loss, demand, cost, damage, action, suit or proceeding
whatsoever, arising from the actions of the Consultant and his/her Consultants,
where such action is the direct result of a breach by the Consultant of the
terms of this Agreement.
ARTICLE IV
ACCOUNTS - SERVICES AND EXPENSES
4.01 The Consultant shall within fifteen (15) days after the end of each
month during which the Services are performed provide the Company with a
statement of account supported by receipts and vouchers for out-of-pocket and
other reasonable expenses incurred and materials supplied by the Consultant
under this Agreement during the period to which such statement relates.
4.02 The Company shall, within ten (10) days of receipt at its Vancouver
office of each itemized statement of account furnished by the Consultant, pay
the Consultant all expenses, costs and charges on disbursements shown in such
itemized statement of account.
ARTICLE V
TERMINATION
5.1 The Consultant may for any reason and in his sole discretion terminate this
Agreement by giving 1 month notice to the Company to that effect. The Company
may for any reason and in its sole discretion terminate this Agreement by paying
the Consultant 1 month consulting fee ($7,500 plus GST) in lieu of the 1 month
notice and shall be liable to pay the Consultant for all expenses incurred up to
and including the effective date of the termination.
ARTICLE VI
ASSIGNMENT
6.01 Neither party shall assign any of his rights or obligations under this
Agreement without the prior written consent of the other party.
ARTICLE VII
AMENDMENT OF THIS AGREEMENT
CONFIDENTIAL
7.01 The terms and conditions of this Agreement may be altered only by
written form of amendment duly executed by both parties hereto.
ARTICLE VIII
NOTICE
8.01 Any notice required or permitted to be given hereunder by any party
shall be deemed to have been given on the day such notice is delivered in
writing to the addresses as set out in the front page of this Agreement, or by
facsimile transmission or, if verbal, when communicated personally or by
telephone to the party to whom it is directed. Notices given verbally or by
facsimile transmission shall be confirmed in writing delivered within three
days, directed to the address of such party herein before set out or such other
address of which written notice may be given from time to time; notice sent by
registered mail will be deemed to have been delivered at the earlier of the time
when the receipt thereof is signed by the addressee and seventy-two (72) hours
after the posting thereof in any Post Office in Canada.
ARTICLE IX
FORCE MAJEURE
9.01 If any party is prevented or delayed from performing any of the
obligations on its part to be performed hereunder by reason of force majeure,
including but not limited to Act's of God, strike, threat of imminent strike,
fire, flood, war, insurrection or riot, mob violence or requirement or
regulation of government which cannot be overcome by reasonable and lawful means
and the use of the facilities normally employed in performing such obligation,
then and in any such event, and so often as the same shall occur, any such
failure to perform shall not be deemed a breach of this Agreement and the
performance of any such obligation shall be suspended during the period of
disability, it being understood that if such situation persists more than 14
days, either party may thereupon terminate this Agreement. The parties agree to
use all due diligence to remove such causes of disability as may occur from time
to time.
ARTICLE X
CONFIDENTIALITY OF INFORMATION
10.01 The Consultant shall take all reasonable precautions to ensure that he
keep confidential any information concerning the Services carried out under this
Agreement, including information disclosed to the Consultant by the Company or
any of its officers, directors, consultants or agents and, without limiting the
generality of the foregoing, Consultant shall xxxx as confidential any and all
information relating to the Company's mining projects ("the Projects") or the
Company's programs with respect thereto.
ARTICLE XI
COVENANT TO REFRAIN AND NOT COMPETE
11.01 Consultant shall refrain from locating any mining claims, acquiring any
lease or other property interest, or acting as an agent for any third party to
acquire such an interest, within an area which includes all lands within ten
(10) kilometres of the external boundaries of any Project, in all instances for
a period of one (1) years from the earlier of the date the Consultant completes
the Services, or the date that the Consultant resigns, quits, or otherwise
terminates this Agreement.
11.02 In the event that the Services are performed on a Project owned or
controlled by a third party and the Company's evaluation of such Project is
subject to a confidentiality agreement between the third party and the Company,
and said confidentiality agreement imposes either a larger area of exclusivity
around the Project, or a longer time period than is stipulated in Subsection
11.01, or both, then Consultant agrees to be bound by the same terms as the
Company respecting such Project.
CONFIDENTIAL
ARTICLE XII
APPLICABLE LAW
12.01 This Agreement shall be governed by and any dispute arising hereunder
shall be determined in accordance with the laws of the Province of British
Columbia.
ARTICLE XIII
DISPUTES
13.01 Any dispute between the parties concerning any matter or arising from
this Agreement shall be referred to a mutually agreeable arbitrator who is
knowledgeable in the mining and financial industries for arbitration.
13.02 The decision of the arbitrator referred to in Subsection 13.01 shall be
final and binding upon the parties.
13.03 Failing agreement on appointment of a arbitrator under Subsection
13.01, any disagreement or dispute shall be resolved by court of law and shall
be referred to, and the parties hereby expressly attorn to, the jurisdiction of
the Courts of the Province of British Columbia.
ARTICLE XIV
ENUREMENT
14.01 This Agreement shall enure to the benefit of and be binding upon the
parties hereto and their respective successors and permitted assigns.
ARTICLE XV
COUNTERPARTS
15.01 This Agreement may be executed in counterparts, each of which will be
deemed to be an original for all purposes but all of which will constitute one
in the same agreement.
IN WITNESS WHEREOF the parties hereto have executed this Agreement, the day and
year first written above.
CONSULTANT: ) COMPANY: )
) )
/s/ Xxxxx Xxxxx 16/02/04 ) /s/ Xxxxxxxx Xxxxx 16/02/04 )
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) )
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CONFIDENTIAL
SCHEDULE "A"
DESCRIPTION OF SERVICES
1. Consultant to provide services to Company in the capacity of "Vice
President Exploration".
2. Consultant will plan the Company's exploration programs including detailing
the work to be performed, budgeting and assigning contracts; he will
oversee all on-going field programs to ensure quality and
cost-effectiveness; and he will provide an interpretation of results and
recommendations for each program.
3. Consultant will review, evaluate and generate new project proposals and
make recommendations to the Company's Board of Directors.
4. Consultant will review and approve News Releases and sign off for the
accuracy of technical content of releases; he will also periodically review
and update Company literature for accuracy where it pertains to technical
matters.
5. Consultant may be asked to participate in presentations to brokers,
analysts and investors regarding the technical aspects of the Company's
work.
6. Consultant will periodically review and comment upon the Company's
exploration strategy and goals.
7. Duties pertaining to the consulting agreement will include project
management for the Company's various projects, as well as synthesizing
exploration results for public dissemination and additional
responsibilities as may be required.
TERM
The term of this agreement shall be for two years and will become effective
March 16, 2004 to March 16, 2006. Any consulting services performed prior to the
effective date of the term of this agreement, will be billed out on a per diem
rate of C$405.00. There will be a review at the end of the first year to
evaluate performance and remuneration, as well as give both parties an
opportunity to assess relationship. Duties will include all the duties as
outlined in this Schedule "A"
COMPENSATION
The Consultant fee will based a rate of $7,500.00 per month to be paid on the
first of each subsequent month. It is understood that the Consultant is entitled
to statutory holidays and reasonable vacation time. Also, Company will provide
medical coverage under the existing benefits program in place effective 15 days
after entering the agreement. This monthly fee to be subject to review after six
months.
The Consultant will also be granted an incentive stock option plan as follows:
o 50,000 options of Amera that shall vest after six months from the date of
this contract.
o 50,000 options of Amera that shall vest after twelve months from the
date of this contract.
o Further options of Amera as they become grantable.
o Options of IMA Exploration Inc. to be determined and granted at next
setting.
The Consultant will be granted a relocation allowance of $25,000.00 upon signing
of this agreement.
The Consultant will be given and automobile and parking allowance of $500.00 per
month.
The Consultant shall be entitled to expense re-imbursement for any entertaining
or travel costs or other expenses pertaining to Company business. Any sizeable
expenses would require prior approval from the President of the Company.
It is understood that during the initial period of this agreement, until such
time as the Consultant is able to relocate his family to the Vancouver area,
that the Consultant will work from both his home in Cranbrook and the Company's
office in Vancouver on a schedule mutually acceptable to both parties.
