EXHIBIT NUMBER 4.55
AMENDMENT TO CONSULTING SERVICES AGREEMENT BETWEEN
OXBOW INTERNATIONAL MARKETING CORP. AND
IMA RESOURCE CORPORATION
DATED APRIL 17, 2003
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MANAGEMENT AGREEMENT
THIS AGREEMENT made and effective as of the 1st day of July, 1999
BETWEEN:
IMA EXPLORATION INC., having an office at
709 - 000 Xxxx Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0
(the "Corporation")
OF THE FIRST PART
AND:
OXBOW INTERNATIONAL MARKETING CORP. having an office at
0000 Xxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxx Xxxxxxxx, X0X 0X0
(the "Contractor")
OF THE SECOND PART
WHEREAS:
A. The Contractor is a private corporation engaged in the provision of
executive level management services, primarily through its principal, Xx. Xxxxxx
Xxxxxx.
B. The Corporation wishes to retain the Contractor to provide services with
respect to the corporate and administrative affairs of the Corporation, as more
particularly set out herein.
NOW THEREFORE, In consideration of the mutual covenants, premises, agreements
and conditions herein contained and other good and valuable consideration (the
receipt and authenticity of which is hereby acknowledged by the parties) the
Contractor and the Corporation hereby agree as follows:
1. DEFINITIONS AND INTERPRETATION
For all purposes of this Agreement, except as otherwise expressly provided:
(a) "this Agreement" means this contract for corporate and administrative
services as from time to time supplemented or amended by one or more
agreements entered into pursuant to the applicable provisions hereof;
(b) the words "herein" and "hereunder" and other words of similar
importance refer to this Agreement as a whole and not to any
particular paragraph, sub-paragraph or other subdivision;
(c) all references to currency mean lawful currency of Canada;
(d) the headings are for convenience only and are not intended as a guide
to interpretation of this Agreement of any portion hereof;
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(e) "Business Day" means any day on which the Corporation's bankers
located in Vancouver, British Columbia, are open for business during
normal banking hours, other than a Saturday or a Sunday; and
(f) "Services" means the services described in section 3 of this
Agreement.
2. ENGAGEMENT AND TERM
(a) The Corporation hereby engages the Contractor to provide the Services
and the Contractor hereby agrees to provide the Services to the
Corporation.
(b) The Contractor's engagement will commence on the date of this
Agreement and continue until this Agreement is terminated in
accordance with the provisions herein.
3. SCOPE OF SERVICES
The Services to be provided by the Contractor shall consist of the following:
(a) making available to the Corporation the services of Xx. Xxx Xxxxxx on
a full time basis to act as President and Chief Executive Officer of
the Corporation and to assist the Corporation on all aspects of its
business, including by not limited to strategic planning, financing,
acquisitions and dispositions and corporate structuring;
(b) liaison with the Corporation's professional representatives on matters
other than of a general administrative nature;
(c) liaison with respect to regulatory policy and procedure and liaison
with regulators and stock exchange officials;
(d) assistance and advice with respect to strategic planning, corporate
structuring, financing alternatives and corporate objectives; and
(e) such further and other corporate services as the board of directors of
the Corporation may, from time to time, request.
4. COMPENSATION
(a) FEE. During the term of this Agreement, the Contractor will be paid a
monthly fee of $8,500 (yielding and annual fee of $102,000), payable
in equal monthly instalments on the first day of each month.
(b) REIMBURSEMENT OF EXPENSES. In addition to the foregoing, the
Corporation will reimburse the Contractor for all reasonable travel
expenses, including car rentals, food and lodging, and sundry expenses
and all other out of pocket expenses incurred in connection with the
business of the Corporation or any of its subsidiaries within 15 days
of presentation of receipts or other evidence satisfactory to the
Corporation in respect of such expenses.
(c) STOCK OPTIONS. The Corporation will grant to the Contractor, stock
options in an amount and on terms determined by the board of directors
of the Corporation from time to time.
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(d) BONUS. In addition to the foregoing, the contractor will be entitled
to a bonus in an amount equal to $6,500 per month calculated from the
date of this Agreement. The bonus will only be payable in accordance
with subsection 8(c) of this Agreement.
(e) ADJUSTMENT TO COMPENSATION. On each anniversary of the date of this
Agreement, while the Contractor remains engaged by the Corporation,
the board of directors of the Corporation, or a committee of such a
board, will carry out an objective review of the terms of reference of
this Agreement and the Contractor's performance, including agreements
in the marketplace and, if warranted, the compensation provided herein
may be increased by the Corporation (but not decreased) for the
following year of engagement, if any, and thereafter.
5. CONTRACTOR'S RIGHT TO TERMINATE
The Contractor may terminate its obligations under this Agreement at any time
upon the occurrence of the following events:
(a) at any time upon providing 60 days' notice in writing to the
Corporation;
(b) upon a material breach or default of any term of this Agreement by the
Corporation if such material breach or default has not been remedied
within 30 days after written notice of the material breach or default
has been delivered by the Contractor to the Corporation; or
(c) in accordance with subsection 7(b).
6. CORPORATION'S RIGHT TO TERMINATE
The Corporation may terminate the Contractor's engagement under this Agreement
at any time upon the occurrence of any of the following events:
(a) the Contractor or any of its directors, officers or employees acting
unlawfully, dishonestly, in bad faith or negligently with respect to
the business of the Corporation to the extent that it has a material
and adverse effect on the Corporation, or acting in any way which
would permit the Corporation to terminate the Agreement "for cause" at
common law if the Contractor or any of its directors, officers or
employees were employees of the Corporation;
(b) the conviction of the Contractor or any of its directors, officers or
employees of any crime or fraud against the Corporation or its
property or any felony offense or crime reasonably likely to bring
discredit upon the Contractor or the Corporation;
(c) the Contractor or any of its directors, officers or employees filing a
voluntary petition in bankruptcy, or being adjudicated bankrupt or
insolvent, or filing any petition or answer under any present or
future statute or law relating to bankruptcy, insolvency or other
relief for debtors;
(d) a material breach or default of any term of this Agreement by the
Contractor if such material breach or default has not been remedied
within 30 days after written notice of the material breach or default
has been delivered by the Corporation to the Contractor;
(e) Xxxxxx Xxxxxx dying or becoming permanently disabled, as determined by
a competent physician chosen by the Corporation, or disabled for a
period exceeding 360 consecutive
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days or 360 days calculated on a cumulative basis over any two year
period during the term of this Agreement;
(f) in accordance with subsection 7(b); or (g) at the discretion of the
Corporation without cause.
7. CHANGE OF CONTROL
(a) For the purposes of this Agreement, a "Change of Control" shall be
deemed to have occurred when:
(i) a majority of the directors elected at any annual or special
general meeting of shareholders of the Corporation are not
individuals nominated by the Corporation's then incumbent
Board;
(ii) there is occurrence of an event, including a take over bid (as
defined in the Securities Act (British Columbia), whereby any
person or entity becomes the beneficial owner of shares
representing 25% or more of the combined voting power of the
voting securities of the Corporation;
(iii) there is a merger or amalgamation of the Corporation with one
or more corporations as a result of which, immediately
following such merger or amalgamation, the shareholders of the
Corporation as a group will hold less than a majority of the
outstanding capital stock of the surviving corporation; or
(iv) the Corporation sells all or substantially all of its assets.
(b) In the event of a Change of Control of the Corporation, the
Corporation or the Contractor may terminate the Contractor's
obligations under this Agreement within 180 days of the Change of
Control upon giving 30 days' notice in writing to the other party, and
in such event, the Contractor will be entitled to receive the
compensation set out in subsection 8(c).
8. PAYMENTS ON TERMINATION
(a) In the event of the termination of the Contractor's employment
pursuant to subsection 5(a), 6(a), 6(b), 6(c) or 6(d) of this
Agreement, the Corporation shall pay to the Contractor within three
Business Days of the date of such termination the full amount of
compensation accrued pursuant to subsections 4(a) and 4(b) of this
Agreement as of the date of termination.
(b) In the event of the termination of the Contractor's employment
pursuant to subsections 5(b) or 6(e) of this Agreement, the
Corporation shall pay to the Contractor within three Business Days of
the date of such termination:
(i) the full amount of compensation accrued pursuant to subsections
4(a) and 4(b) of this Agreement as of the date of termination,
(ii) the bonus referred to under subsection 4(d) to the date of
termination; and
(iii) 12 months of its then current compensation under subsections
4(a) and 4(d).
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(c) In the event of the termination of the Contractor's employment
pursuant to subsection 6(g) or 7(b) of this Agreement, the Corporation
shall pay to the Contractor within three Business Days of the date of
such termination:
(i) the full amount of compensation accrued pursuant to subsections
4(a) and 4(b) of this Agreement as of the date of termination;
(ii) the bonus referred to under subsection 4(d) to the date of
termination; and
(iii) three years compensation under subsections 4(a) and 4(d).
(d) The Contractor may, by notice to the Corporation, elect to take the
severance payments to which he is entitled under subsections 8(a),
8(b) or 8(c), as the case may be, in a lump sum payment, or in
instalments over such period as the Contractor may specify.
(e) Any payments made pursuant to sections 8(a), 8(b) or 8(c) will be made
as liquidated damages and not as a penalty, and the parties have
agreed in advance that such amounts represent a genuine pre-estimate
of the damages to be suffered by the Contractor should this Agreement
be terminated pursuant to sections 5, 6 or 7(b).
9. CONFIDENTIALITY
The Contractor shall not either during the continuance of its engagement or
anytime thereafter divulge, publish or otherwise reveal either directly or
indirectly or through any person, firm or corporation the private affairs or
secrets of the Corporation, its subsidiaries or affiliates to any person or
persons other than the directors of the Corporation and shall not without the
written consent of the Corporation either during the continuance of its
engagement or at any time thereafter, use for its own purpose or any purpose
other than those of the Corporation any information it may acquire in relation
to the business and affairs of the Corporation except such information which is
in the public domain or is required by law to be disclosed. The Contractor
agrees, during the term of its engagement and at all times thereafter to keep
confidential all information and material provided to it by the Corporation,
accepting only such information as is already known to the public or required by
law to be disclosed, and including any such information already known to the
public or required by law to be disclosed, and including any such information
and material in relation to any customer, vendor or other party transacting
business with the Corporation, and not to release, use or disclose the same,
except with the prior written permission of the Corporation. The within
understanding shall survive the termination of this Agreement or of the
Contractor's engagement even if occasioned by the Corporation's breach or
wrongful termination. The Contractor will cause all of its directors, officers,
employees, advisors and consultants to comply with this section 9.
10. INDEPENDENT CONTRACTOR
In performing the Services hereunder, the Contractor shall operate as and shall
have the status of an independent contractor and shall not act or hold itself
out as or be an agent of the Corporation and shall not bind the Corporation to
any agreement or transaction.
11. SEVERABILITY
The invalidity or unenforceability of any provisions of this Agreement shall not
affect the validity or enforceability of any other provision of this Agreement,
which shall remain in full force and effect.
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12. ENUREMENT
This Agreement shall enure to the benefit of and be binding upon the parties
hereto and their respective successors and permitted assigns.
13. NOTICES
Unless otherwise specified in this Agreement, any notice or other communication
required to be given by any party pursuant to this Agreement must be in writing,
given by letter or notice delivered by hand or first-class prepaid post or
transmitted by facsimile transmission, and addressed to the recipient and sent
to the address and facsimile number of the recipient set out below, marked for
the attention of the representative set out below:
(a) If to the Contactor: Oxbow International Marketing Corporation
0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX X0X 0X0
Fax: 000-000-0000
(b) If to the Corporation: IMA Exploration Inc
709 - 000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX, X0X 0X0
Fax: 000-000-0000
Any notice personally delivered shall be deemed to have been given by the sender
and received by the addressee at the time of delivery. Any notice sent by
facsimile shall be deemed to have been given by the sender and received by the
addressee on the first business day after it was transmitted.
14. GOVERNING LAW
The validity, interpretation, construction and performance of the Agreement
shall be governed by the laws of the Province of British Columbia and the
parties hereby irrevocably attorn to the jurisdiction of the courts of British
Columbia.
15. WAIVER
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
Contractor and the Corporation. 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 preformed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same time or
at any prior or subsequent time.
16. ENTIRE AGREEMENT
No agreements or representations, oral or otherwise, expressed or implied with
respect to the subject matter hereof have been made by wither party which are
not set forth expressly in the Agreement.
17. NO ASSIGNMENT
This Agreement may not be assigned by either party hereto without the written
consent of the other.
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18. COUNTERPARTS
The 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.
IN WITNESS WHEREOF the parties have caused this Agreement to be executed and
delivered as of the day and year above first set forth.
IMA EXPLORATION INC.
Per:
/s/ Xxxxxxxx Xxxxx
----------------------------
Xxxxxxxx Xxxxx, Director & Corporate Secretary
OXBOW INTERNATIONAL MARKETING CORP.
Per:
/s/ Xxxxxx Xxxxxx
------------------------------
Xxxxxx Xxxxxx, President
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