MANAGEMENT SERVICES AGREEMENT
This Management Services Agreement (the "Agreement") is entered into
this 6th day of February 2006, with an effective date of December 1, 2005
(the "Effective Date"), by and between White Mountain Titanium Corporation, a
Nevada corporation ("WMTC"), and MinCo Corporate Mgmt Inc., a body corporate,
duly incorporated under the laws of British Columbia, Canada ("MinCo").
RECITALS:
A. WMTC, through its wholly owned Chilean subsidiary, owns a rutile
mineral property known as the Cerro Xxxxxx project located in Region III of
Chile and is or proposes to carry on mining operations on the project.
B. WMTC requires consulting and management services to fulfill
financial and corporate reporting obligations in the United States.
C. WMTC desires to engage MinCo, and MinCo is willing to provide
services, pursuant to the terms of this Agreement.
NOW, THEREFORE, in consideration of the mutual terms and conditions set
forth herein, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Services and Duties.
a. Accounting and Corporate Services. MinCo shall provide
accounting and corporate compliance services to WMTC as requested from
time-to-time. MinCo shall conform to all lawful instructions and directions
given to it by the Board of Directors of WMTC, or a person designated by the
Board of Directors. MinCo shall devote sufficient time and attention to the
business and affairs of WMTC.
b. Performance of Duties. All services provided by the MinCo
hereunder shall be performed in a timely manner and in accordance with good
and standard professional practice.
c. Conflicts of Interest. During the term of this Agreement
MinCo 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 their
obligations under this Agreement.
2. Compensation and Reimbursable Expenses.
a. Hourly Fee and Retainer. In consideration of MinCo's services
as described herein, WMTC shall pay to MinCo a consulting fee of $45 per
hour, plus any applicable taxes (the "Hourly Rate"). WMTC shall pay MinCo a
retainer of $2,000 per month
(plus any applicable taxes) in consideration of MinCo performing up to forty
four (44) hours of service during each one-month period commencing the
Effective Date, due and payable on the first business day of each month. Any
additional hours of service performed will be invoiced out at the Hourly Rate
and payment of the additional services shall be made within fifteen (15) days
upon receipt of invoice.
b. Out-of-Pocket Expenses. WMTC shall reimburse MinCo for all
reasonable out-of-pocket expenses incurred by MinCo pursuant to the
provisions of this Agreement, any expenses of which exceed $500 must be
pre-approved. Expenses shall be submitted on an expense report for payment
approved by WMTC and payment of expenses shall be made by WMTC within fifteen
(15) days upon presentation.
c. Funds. All amounts payable to MinCo hereunder shall be in
Canadian funds.
3. Term and Renewal. The term of this Agreement shall be for a period
of one year from the Effective Date, unless it is terminated earlier as
provided herein. Beginning on that date, and on each anniversary thereafter,
unless it is terminated earlier as provided herein or WMTC delivers written
notice to MinCo of its intention not to extend the Agreement at least ninety
(90) days before such anniversary date, the term of this Agreement shall
automatically be extended for one additional year. The restrictive covenants
in paragraph 5 hereof shall survive the termination of this Agreement.
4. Termination.
a. Termination Without Cause. Either WMTC or MinCo may terminate
this Agreement at any time without cause (as defined below), provided that it
gives written notice of termination to the other party at least ninety (90)
days before the date of such termination.
b. Termination For Cause. WMTC shall be entitled at any time,
with or without prior notice, to terminate this Agreement for cause, in which
case no compensation or other fees (other than such fees that have already
been earned by MinCo) shall be payable to MinCo after such termination.
"Cause" means MinCo's, or its principals', agents', employees' or
representatives' (i) gross negligence in the performance or non-performance
of any material duties to WMTC; (ii) commission of any material criminal act
or fraud or of any act that affects adversely the reputation of WMTC; (iii)
habitual neglect of MinCo's duties that are required to be performed under
this Agreement; (iv) dishonesty; or (v) gross misconduct. Such termination
shall not prejudice any other remedy under law or equity of WMTC and the
failure of WMTC to terminate MinCo when cause exists shall not constitute the
waiver of WMTC's right to terminate this Agreement at a later time.
Termination under this paragraph shall be considered for cause for purposes
of this Agreement.
5. Confidential Information. MinCo recognizes and acknowledges that
certain information, including, but not limited to, information pertaining to
the financial condition of WMTC, its systems, methods of doing business,
agreements with customers or suppliers, or other aspects of the business of
WMTC or which are sufficiently secret to derive economic value
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from not being disclosed (hereinafter "Confidential Information") may be made
available or otherwise come into the possession of MinCo by reason of this
engagement with WMTC. Accordingly, MinCo agrees that neither it nor its
principals, agents, employees, or representatives will (either during or after
the term of this engagement with WMTC) disclose any Confidential Information
to any person, firm, corporation, association, or other entity for any reason
or purpose whatsoever or make use to its or their personal advantage or to the
advantage of any third party, of any Confidential Information, without the prior
written consent of WMTC. MinCo shall, upon termination of this engagement,
return to WMTC, and shall cause its principals, agents, employees, and
representatives to return to WMTC, all documents which reflect Confidential
Information (including copies thereof). Notwithstanding anything heretofore
stated in this paragraph, MinCo's obligations under this Agreement shall not,
after termination of MinCo's engagement with WMTC, apply to information which
has become generally available to the public without any action or omission
of MinCo (except that any Confidential Information which is disclosed to any
third party by an employee or representative of WMTC who is authorized to
make such disclosure shall be deemed to remain confidential and protectable
under this provision).
6. Independent Contractor. MinCo agrees that in performing this
Agreement, it is acting as an independent contractor and not as employee or
agent of WMTC. As an independent contractor, MinCo shall not be eligible for
any benefits which WMTC may provide to its employees. All persons, if any,
hired by MinCo to perform this Agreement shall be employees of MinCo and
shall not be construed as employees or agents of WMTC in any respect. MinCo
shall be responsible for all taxes, insurance and other costs and payments
legally required to be withheld or provided in connection with MinCo's
performance of this Agreement, including without limitation, all withholding
taxes, worker's compensation insurance, and similar costs.
7. Miscellaneous Provisions.
a. Notice. All notices required or permitted hereunder shall be
in writing and shall be deemed effective: (1) upon personal delivery; (2)
when sent by facsimile at the number set forth below; or (3) in the case of
delivery by internationally recognized overnight delivery service, when
received, addressed as follows:
If to WMTC to:
2150 - 0000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
Xxxxxx X0X 0X0
Attn: Xxxxx Flower, CFO
FAX: (000) 000-0000
With a copy (which shall not constitute notice) to:
Xxxxxx X. Xxxxx
Attorney at Law
00 Xxxx 000 Xxxxx
Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000
FAX: (000) 000-0000
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If to MinCo, to:
000 - 000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx Xxxxxxxx X0X 1
Attn: Xxxxxx Xxxxxxxxx
FAX: (000) 000-0000
or to such other address or addresses, or facsimile number or numbers, as
either party shall designate to the other in writing from time to time by
like notice.
b. Attorneys' Fees. If any legal action or other proceeding is
brought for the enforcement of this Agreement, or because of an alleged
dispute, breach, default, or misrepresentation in connection with any of the
provisions of this Agreement, the successful or prevailing party or parties
will be entitled to recover reasonable attorneys' fees and other costs
incurred in that action or proceeding, in addition to any other relief to
which it or they may be entitled.
c. Additional Remedies. MinCo acknowledges and agrees that, in
the event it shall violate any of the restrictions of paragraph 5 hereof,
WMTC will be without adequate remedy at law and will therefor be entitled to
enforce such restrictions by temporary or permanent injunctive or mandatory
relief obtained in an action or may have at law or in equity, and MinCo
hereby consents to the jurisdiction of such court for such purpose, provided
that reasonable notice of any proceeding is given, it being understood that
such injunction shall be in addition to any remedy which WMTC may have at law
or otherwise.
d. Entire Agreement; Modification; Waiver. This Agreement
constitutes the entire agreement between or among the parties pertaining to
the subject matter contained in it and supersedes all prior and
contemporaneous agreements, representations, and understandings of the
parties. No supplement, modification, or amendment of this Agreement will be
binding unless executed in writing by all the parties or the applicable
parties to be bound by such amendment. No waiver of any of the provisions of
this Agreement will constitute a waiver of any other provision, whether or
not similar, nor will any waiver constitute a continuing waiver. No waiver
will be binding unless executed in writing by the party making the waiver.
e. Survival of Covenants, Etc. All covenants, representations
and warranties made herein shall survive the making of this Agreement and
shall continue in full force and effect for a period of two years from the
termination date of this Agreement, at the end of which period no claim may
be made with respect to any such covenant, representation, or warranty unless
such claim shall have been asserted in writing to the indemnifying party
during such period.
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f. Assignment. This Agreement, as it relates to the engagement
of MinCo, is a personal contract and the rights and interests of MinCo
hereunder may not be sold, transferred, assigned, pledged or hypothecated,
without the prior written consent of WMTC, which consent may be withheld for
any reason.
g. Binding on Successors. This Agreement will be binding on, and
will inure to the benefit of, the parties to it and their respective heirs,
legal representatives, successors, and assigns.
h. Governing Law and Venue. This Agreement shall be governed by
and construed in accordance with the laws of the State of Utah, U.S.A.,
without reference to the choice of law principals thereof. The parties
hereto irrevocably submit to the jurisdiction of the Courts of the State of
Utah, U.S.A., located in Salt Lake County and the United States District
Court of Utah in any action arising out of or relating to this Agreement, and
hereby irrevocably agree that all claims in respect of such action may be
heard and determined in such state or federal court. The parties hereto
irrevocably waive, to the fullest extent they may effectively do so, the
defense of an inconvenient forum to the maintenance of such action or
proceeding. The parties further agree, to the extent permitted by law, that
final and unappealable judgment against any of them in any action or
proceeding contemplated above shall be conclusive and may be enforced in any
other jurisdiction within or outside the United States by suit on the
judgment, a certified copy of which shall be conclusive evidence of the fact
and amount of such judgment.
i. Rights Are Cumulative. The rights and remedies granted to the
parties hereunder shall be in addition to and cumulative of any other rights
or remedies either may have under any document or documents executed in
connection herewith or available under applicable law. No delay or failure
on the part of a party in the exercise of any power or right shall operate as
a waiver thereof nor as an acquiescence in any default nor shall any single
or partial exercise of any power or right preclude any other or further
exercise thereof or the exercise of any other power or right.
j. Severability. If any provision of this Agreement is held
invalid or unenforceable by any court of final jurisdiction, it is the intent
of the parties that all other provisions of this Agreement be construed to
remain fully valid, enforceable, and binding on the parties.
k. Drafting. This Agreement was drafted with the joint
participation of the parties and/or their legal counsel. Any ambiguity
contained in this Agreement shall not be construed against any party as the
draftsman, but this Agreement shall be construed in accordance with its fair
meaning.
l. Headings. The descriptive headings of the various paragraphs
or parts of this Agreement are for convenience only and shall not affect the
meaning or construction of any of the provisions hereof.
m. Number and Gender. Wherever from the context it appears
appropriate, each term stated in either the singular or the plural shall
include the singular and the plural, and
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pronouns stated in either the masculine, the feminine, or the neuter gender
shall include the masculine, feminine, and neuter.
n. Counterparts; Facsimile Execution. This Agreement may be
executed in any number of counterparts and all such counterparts taken
together shall be deemed to constitute one instrument. Delivery of an
executed counterpart of this Agreement by facsimile or email shall be equally
as effective as delivery of a manually executed counterpart of this
Agreement. Any party delivering an executed counterpart of this Agreement by
facsimile or email also shall deliver a manually executed counterpart of this
Agreement, but the failure to deliver a manually executed counterpart shall
not affect the validity, enforceability, or binding effect of this Agreement.
o. Full Knowledge. By their signatures, the parties acknowledge
that they have carefully read and fully understand the terms and conditions
of this Agreement, that each party has had the benefit of counsel, or has
been advised to obtain counsel, and that each party has freely agreed to be
bound by the terms and conditions of this Agreement.
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement the respective day and year set forth below.
WMTC: White Mountain Titanium Corporation
Date: February 7, 2006 By /s/ Xxxxxxx X. Xxxxxxxxx
Xxxxxxx X. Xxxxxxxxx, President
MinCo: MinCo Corporate Mgmt Inc.
Date: February 7, 2006 By /s/ Xxxxxx Xxxxxxxxx
Its President
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FIRST AMENDMENT
TO THE
MANAGEMENT SERVICES AGREEMENT
This Amendment (the "Amendment"), entered into this 1st day of September
2006, is to the Management Services Agreement (the "Agreement") entered into
on February 6, 2006, with an effective date of December 1, 2005, by and
between White Mountain Titanium Corporation ("WMTC") and MinCo Corporate Mgmt
Inc. ("MinCo").
IT IS HEREBY AGREED AS FOLLOWS:
1. Section 1(a) of the Agreement is amended to read as follows:
Accounting and Corporate Services. MinCo shall provide accounting
support services to WMTC and its Chief Financial Officer as
requested from time-to-time. MinCo shall also provide the services
of Xxxxxx Xxxxxxxxx to serve as Secretary and Treasurer of WMTC.
MinCo shall conform to all lawful instructions and directions given
to it by the Board of Directors of WMTC, or a person designated by
the Board of Directors. MinCo shall devote sufficient time and
attention to the business and affairs of WMTC.
2. 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.
3. 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.
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement the respective day and year set forth below.
White Mountain Titanium Corporation
Date: September 6, 2006 By /s/ Xxxxxxx X. Xxxxxxxxx
Xxxxxxx X. Xxxxxxxxx, President
MinCo Corporate Mgmt Inc.
Date: September 6, 2006 By /s/ Xxxxxx Xxxxxxxxx
Its President
