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Exhibit 3k
CONSULTING AGREEMENT
THIS AGREEMENT is dated the 25 day of June, 1996,
BETWEEN:
MINCO MINING & METALS CORPORATION
0000-000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx
Xxxxxxx Xxxxxxxx, X0X 0X0
(herein the "CLIENT")
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KAISUN GROUP CANADA INC.
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxxx
Xxxxxxx, X0X 0X0
(herein the "CONSULTANT")
WHEREAS the Client desires to engage the Consultant to provide services to the
Client for the term of this Agreement and the Consultant has agreed to provide
such services, all in consideration and upon the terms and conditions contained
herein;
NOW THEREFORE it is hereby agreed as follows:
1. SERVICES
The Client agrees to engage the Consultant to act as President and
Chief Executive Officer and to provide the Client with such other
consulting services as the Client and the Consultant agree upon and the
Consultant has agreed to perform and provide such services
(collectively the "SERVICES").
2. TERM
Except as otherwise provided in this Agreement, the Client agrees to
engage the Consultant to provide the Services for a term commencing
March 1, 1996 and ending June 25, 1999.
3. FEE
(a) The Client agrees to pay the Consultant a fee for the Services
provided by the
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Consultant under the Agreement in the amount of $500.00 per day payable
monthly on the last day of each month to a maximum of $100,000 per
year with such amounts reviewable upon each successive anniversary
dates during the term of this Agreement.
(b) The Consultant agrees to render monthly invoices to the
Client, in a form reasonably acceptable to the Client,
detailing the Services performed by the Consultant.
(c) The Client shall be responsible for all sales taxes (including
goods and services taxes) due in respect of the fees paid to
the Consultant. The fees paid to the Consultant under this
Agreement shall be increased to take into account any
applicable goods and services taxes or other sales or value
added taxes payable in respect of such fees, and all invoices
provided by the Consultant shall include the GST registration
number and any other applicable sales or value added tax
registration numbers of the Consultant.
4. EXPENSES
The Client shall pay for or reimburse the Consultant for all
reasonable, ordinary and necessary expenses incurred by the Consultant
in the ordinary course of performing the Services upon presentation of
proper accounts, statements, invoices or receipts for such items.
5. INDEPENDENT CONTRACTOR
The Consultant's relationship with the Client as created by this
Agreement is that of an independent contractor for the purposes of the
Income Tax Act (Canada) and any similar provincial taxing legislation.
It is intended that the Consultant shall have general control and
direction over the manner in which its services are to be provided to
the Client under this Agreement. Nothing contained in this Agreement
shall be regarded or construed as creating any relationship (whether by
way of employer/employee, agency, joint venture, association. or
partnership) between the parties other than as an independent
contractor as set forth herein.
6. TIME AND EFFORT
The Consultant shall be free to devote such portion of the Consultant's
time, energy, effort and skill as the Consultant sees fit, and to
perform the Consultant's duties when and where the Consultant sees fit,
so long as the Consultant performs the Services set out in this
Agreement in a timely and professional fashion.
7. AUTHORITY
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The Consultant acknowledges that it is being retained as a consultant
to the Client and that as such it does not have the authority and
cannot commit or bind the Client to any matter, contract or negotiation
without the prior authorization of the Client.
8. COMPLIANCE
(a) The Consultant shall comply with a applicable federal,
provincial and municipal laws, rules and regulations arising
out of or connected with the performance of the Services under
this Agreement by the Consultant or its employees.
(b) The Consultant shall be responsible for all Unemployment
Insurance Contributions, Canada Pension Plan contributions,
Income Tax and Workers' Compensation payments relating to or
arising out of the fees paid to the Consultant under this
Agreement and the Services performed by the Consultant or its
employees. Payments relating to any of the above shall be the
responsibility of the Consultant and shall be forwarded by the
Consultant as appropriate, directly to the government agencies
involved. Proof of compliance with this requirement shall be
available to the Client upon request.
(c) In the event that any taxing authority, for whatever reason,
seeks from the Client any Unemployment Insurance
Contributions, Canada Pension Plan contributions, Income Taxes
or Workers' Compensation payments, the Consultant agrees to
indemnify the Client and any of its directors, officers and
employees, for the full amount of any such contributions or
payments (including any applicable interest and penalties
thereon). The Consultant further agrees that the Client may
set off an equal amount of such contributions or payments
(including any applicable interest and penalties thereon)
against any fees and expenses payable to the Consultant under
this Agreement.
9. KEY PERSON
The parties acknowledge that Xxx Xxx is a key employee of the
Consultant and is integral to the successful performance of the
Services by the Consultant under this Agreement. It is acknowledged by
the Consultant that Xxx Xxx will perform all of the Services, unless
the Client otherwise consents in writing.
10. SUPPORT
The Client agrees to provide such assistance and make available such
employees, office space and support to the Consultant as is reasonably
necessary to enable the Consultant to perform the Services under this
Agreement.
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11. CONFIDENTIAL INFORMATION
(a) The Consultant acknowledges that certain of the material and
information made available to the Consultant by the Client in
the performance of the Services (the "CONFIDENTIAL
INFORMATION") will be of a confidential nature. The Consultant
recognizes that the Confidential Information is the sole and
exclusive property of the Client, and the Consultant shall use
its best efforts and exercise utmost diligence to protect and
maintain the confidentiality of the Confidential Information.
The Consultant shall not, directly or indirectly, use the
Confidential Information for its own benefit, or disclose to
another any Confidential Information, whether or not acquired,
learned, obtained or developed by the Consultant alone or in
conjunction with others, except as such disclosure or use may
be required in connection with the performance of the Services
or as may be consented to in writing by the Client.
(b) The Confidential Information is and shall remain the sole and
exclusive property of the Client regardless of whether such
information was generated by the Consultant or by others, and
the Consultant agrees that upon termination of this Agreement
it shall deliver promptly to the Client all such tangible
parts of the Confidential Information including records, data,
notes, reports, proposals, client lists, correspondence,
materials, marketing or sales information, computer programs,
equipment. or other documents or property which are in the
possession or under the control of the Consultant without
retaining copies thereof.
(c) Each of the foregoing obligations of the Consultant in this
clause shall also apply to any confidential information of
customers, joint venture parties, contractors and other
entities, of any nature whatsoever, with whom the Client or
any associate or affiliate of the Client has business
relations.
(d) Notwithstanding the foregoing provisions of this clause, the
Consultant shall not be liable for the disclosure or use of
any of the Confidential Information to the extent that:
(i) the Confidential Information is or becomes available to
the public from a source other than the Consultant and
through no fault of the Consultant; or
(ii) the Confidential Information is lawfully obtained by
the Consultant from a third party or a source outside
of this Agreement.
(e) The covenants and agreements contained in this clause shall
survive the termination of this Agreement.
12. OTHER SERVICES
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The Consultant will be free to perform consulting and other services to
the Consultant's other clients during the term of this Agreement,
provided however, that the Consultant shall ensure that the Consultant
is able to perform the Services pursuant to this Agreement in a timely
and professional fashion. The Consultant agrees not to perform services
for the Consultant's other clients which may create a conflict of
interest or interfere with the Consultant's duties pursuant to this
Agreement.
13. TERMINATION
(a) In the event that the Consultant breaches this Agreement, or
otherwise fails to perform the Services in accordance with the
terms of this Agreement, the Client may terminate this
Agreement immediately and without notice for cause. Either
party may terminate this Agreement at any time, without cause
or reason, upon living 2 months advance written notice to the
other.
(b) Upon termination of this Agreement:
(i) the Client's obligations to the Consultant under this
Agreement shall terminate except for the Client's
obligation to pay any fees and expenses in accordance
with the terms of this Agreement, to the date of
termination; and
(ii) the Consultant's obligations to the Client under this
Agreement shall terminate except those obligations
which are specifically expressed to survive the
termination of this Agreement.
14. INDEMNIFICATION
(a) The Client undertakes to, and does hereby agree to, indemnify
the Consultant and its directors. officers and employees
against any and all actions, suits, claims, costs, and
demands, losses, damages and expenses which may be brought
against or suffered by them or which they may sustain, pay or
incur by reason of the Consultant's performance of the
Services under this Agreement, with the exception of any such
actions, suits, claims, costs and demands, losses, damages and
expenses caused by the wilful misconduct or gross negligence
of the Consultant or any of its directors, officers or
employees.
15. GOVERNING LAW
This Agreement shall be governed by the laws of the Province of Ontario
and the federal laws of Canada applicable therein.
16. SEVERABILITY
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If any provision of this Agreement, or the application of such
provision to any person or in any circumstance, shall be determined to
be invalid, illegal or unenforceable, the remaining provisions of this
Agreement, and the application of such provision to any person or in
any circumstance other than that to which it is held to be invalid,
illegal or unenforceable, shall not be affected thereby.
17. AMENDMENTS
Any amendment to this Agreement must be in writing and signed by both
parties hereto.
18. TIME OF ESSENCE
Time shall be of the essence in this Agreement.
19. ENTIRE AGREEMENT
This is the entire Agreement between the Client and the Consultant with
respect to the consulting services to be provided by the Consultant to
the Client and supersedes any prior agreements with respect to such
services whether written or oral.
20. NOTICES
Notices hereunder shall be in writing and must be either personally
delivered or sent by registered mail to the address(es) set forth
above. A party may change the address set forth above by proper notice
to the other.
21. NO WAIVER
The failure of any party to insist upon the strict performance of a
covenant or obligation hereunder, irrespective of the length of time
for which such failure continues, shall not be a waiver of such party's
right to demand strict performance in the future. No consent or waiver,
express or implied, to or of any breach or default in the performance
of any covenant or obligation hereunder shall constitute a consent or
waiver to or of any other breach or default in the performance of the
same or of any other obligation hereunder.
22. ASSIGNMENT
This Agreement is personal in nature and may not be assigned by either
party hereto.
23. ENUREMENT
This Agreement shall be binding upon and shall enure to the benefit of
each of the parties
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hereto and their respective employees and permitted receivers,
successors and assigns.
IN WITNESS WHEREOF the parties hereto have signed this Agreement as of the day
and year first above written.
MINCO MINING & METALS CORPORATION
Per: /s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx
Chairman of the Board
KAISUN GROUP CANADA INC.
Per: /s/ Xxx Xxx
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Xxx Xxx
President
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