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EXHIBIT NUMBER 10.16
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MANAGEMENT AGREEMENT
DATED 3rd APRIL 2000
PARTIES
PHOENIX MANAGEMENT LIMITED
(PHOENIX)
AND
PACIFIC LITHIUM LIMITED
(PLL)
▇▇▇▇▇ ▇▇▇▇▇
LAWYERS CORPORATE ADVISERS STRATEGISTS
AUCKLAND
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MANAGEMENT AGREEMENT
AGREEMENT dated the 3rd day of April 2000
PARTIES
1. PHOENIX MANAGEMENT LIMITED a duly incorporated company having its
registered office at Auckland ("PHOENIX")
2. PACIFIC LITHIUM LIMITED a duly incorporated company having its registered
office at Auckland ("PLL")
INTRODUCTION
A. PLL has requested PHOENIX and PHOENIX has agreed, to provide the Services
to PLL and companies in the PLL group.
AGREEMENT
DEFINITIONS AND INTERPRETATION
1.0 In this agreement, unless the context otherwise requires:
COMMENCEMENT DATE means 3rd April 2000.
CONFIDENTIAL INFORMATION means any Information:
(a) Relating directly or indirectly to the business of PLL or its
suppliers or customers; or
(c) Disclosed by either party to the other on the express basis that
such information is confidential; or
(d) Which might reasonably be expected by either party to be
confidential in nature;
provided that where information relates exclusively to one party, nothing
in this agreement shall require that party to maintain confidentiality in
respect of that information.
CONSULTANCY FEE means the fee payable by PLL to PHOENIX for the provision
by PHOENIX of the Services calculated pursuant to SCHEDULE 2.
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GST means goods and services tax in terms of the Goods and Services Tax
▇▇▇ ▇▇▇▇, at the rate prevailing from time to time.
MANAGER means ▇▇▇▇▇ Theodorus Johannink
REIMBURSABLE EXPENSES means expenses of the type specified in SCHEDULE 2
and includes any other expense necessarily incurred by PHOENIX as a direct
result of any failure by PLL to perform any obligation of PLL under this
agreement in the manner and at the time required by this agreement.
SERVICES means the services to be provided by PHOENIX and outlined in
SCHEDULE 1.
TERM means the period commencing on the Commencement Date and terminating
on six months notice given by PLL or PHOENIX at any time.
2.0 In this agreement:
(a) Where the context permits, the singular includes the plural and vice
versa.
(b) References to any "party" mean a party to this agreement and include
the successors, executors, administrators and permitted assignees
(as the case may be) of that party.
(c) References to clauses and schedule are to clauses in, and the
schedule to, this agreement (unless stated otherwise). Each such
schedule forms part of this agreement.
(d) Where the context permits, references to a "person" include an
individual, firm, company, corporation or unincorporated body of
persons, any public, territorial or regional authority, any
government, and any agency of any government or of any such
authority.
(e) References to a month or a year are references to a calendar month
or calendar year.
APPOINTMENT OF PHOENIX
3.0 PLL appoints PHOENIX, and PHOENIX accepts such appointment, to provide the
Services to PLL during the Term and upon the terms and conditions
appearing in this agreement.
PHOENIX'S RESPONSIBILITIES
4.0 PHOENIX shall:
4.1 Provide the Services for the Term including the services of the
Manager.
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4.2 Comply with industry best practice and all relevant codes of
practice in providing the Services.
PLL'S RESPONSIBILITIES
5.0 PLL shall, throughout the Term:
5.1 Promptly provide all information, directions, assistance and
co-operation reasonably required by PHOENIX for the provision of the
Services.
5.2 Provide such facilities as shall reasonably be required by PHOENIX
and the Manager to enable them to perform their obligations under
this agreement.
6.0 PLL shall be responsible for all costs, loss or damaged suffered by the
Manager or PHOENIX and arising from the failure by PLL to provide the
Manager with working conditions that meet all health and safety standards
imposed under all applicable regulations or laws.
7.0 PLL shall confirm acceptance of the completion of the Services and shall
be responsible for the implementation of any recommendations made by
PHOENIX and for compliance with procedures stipulated by PHOENIX.
INTELLECTUAL PROPERTY
8.0 PLL and PHOENIX each acknowledge the other's ownership of its patents,
proprietary processes, copyright and other intellectual property and that
it will not infringe or dispute the same.
9.0 All business records, developed or maintained by PHOENIX or the Manager in
the course of providing the Services under this agreement shall at all
times be the absolute property of PLL and, to the extent reasonably
practicable, shall be kept at PLL's premises.
CONFIDENTIALITY
10.0 Each party shall maintain as confidential at all times, and shall not at
any time, directly or indirectly:
10.1 Disclose or permit to be disclosed to any person; or
10.2 Use for itself; or
10.3 Use to the detriment of the other party,
any Confidential Information except:
10.4 As required by law; or
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10.5 As is already or becomes public knowledge, otherwise than as a
result of a breach by the party disclosing or using that
Confidential Information of any provision of this agreement; or
10.6 As authorised in writing by the other party; or
10.7 To the extent reasonably required by this agreement (and, without
limiting the effect of this clause, a party may disclose
Confidential Information only to such of its officers, employees or
professional advisers, on a "need to know" basis, as is reasonably
required in order for the implementation of this agreement).
CONSULTANCY FEES AND REIMBURSABLE EXPENSES
11.0 The Consultancy Fee shall be paid by PLL within seven days of invoice from
PHOENIX.
12.0 PHOENIX shall provide to PLL, no more frequently than monthly, a valid tax
invoice for GST purposes in respect of all Reimbursable Expenses which
PHOENIX has incurred and for which PHOENIX has paid and is entitled to be
reimbursed by PLL. Each such invoice shall be accompanied by such evidence
as PLL may reasonably consider appropriate that the expenses covered by
the invoice are Reimbursable Expenses.
TERM AND TERMINATION
13.0 This agreement shall have effect during the Term or until the date on
which it is terminated in accordance with clause 15.0.
14.0 In addition to any other right of termination or remedy conferred on the
parties under this agreement or by law, this agreement may be terminated
at any time and with immediate effect by written notice given by either
PLL or PHOENIX (referred to in this clause as "the First Party") to
PHOENIX or PLL respectively (referred to in this clause as "the Second
Party") if:
14.1 The Second Party has failed to comply with an earlier written notice
given by the First Party specifying a material breach of this
agreement by the Second Party and, in the case of a breach which is
capable of remedy, requiring that the Second Party remedy that
breach within 5 Business Days after receipt of that earlier notice,
provided that the First Party may not at any time give such a notice
if, at that time, the First Party is in default under this
agreement.
14.2 The Second Party goes into liquidation (otherwise than for a solvent
restructuring which has been previously approved in writing by the
First Party (which approval may not be unreasonably withheld) or a
receiver or statutory manager has been appointed in respect of the
Second Party or any material part of its assets or if any event
analogous in nature has occurred in respect of the Second Party
under the laws of any relevant jurisdiction.
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14.3 The Second Party suspends, for 10 Business Days or longer, or
ceases, its principal business activities.
14.4 The Second Party makes any assignment to, or enters into an
arrangement for the benefit of, its creditors (other than for the
purposes of a solvent restructuring).
14.5 There occurs any change in the composition of the shareholding in,
or the board of directors of, the Second Party (being PHOENIX) or if
the Second Party (being PHOENIX) ceases to be controlled by the same
persons as at the date of this agreement.
14.6 The Second Party has committed any material breach of this
agreement, which breach is not reasonably capable of being remedied
by the Second Party within 20 Business Days, provided that the First
Party may not at any time give such a notice if, at that time, the
First Party is in default under this agreement.
15.0 Upon termination of this agreement for whatever reason:
15.1 Such termination shall be without prejudice to the rights and
remedies of either party in respect of any antecedent breach of this
agreement by the other party.
15.2 PLL shall, notwithstanding such termination, pay (in the manner and
at the times provided in this agreement) to PHOENIX the Consultancy
Fee and all Reimbursable Expenses as relate to the period up to and
including the date of termination.
DISPUTES
16.0 Unless a party has first complied with clauses 17 - 19 (inclusive) that
party may not commence court proceedings or arbitration relating to any
dispute arising from this agreement (except where the party seeks urgent
interlocutory relief, in which case that party need not comply with this
clause before seeking such relief) and where that party fails to so comply
with those clauses, the other parties need not comply with those clauses
before referring the dispute to arbitration or commencing court
proceedings relating to that dispute.
17.0 Any party (referred to in this clause as "the First Party") claiming that
a dispute has arisen under this agreement between itself and any other
party shall give written notice to the other party to the dispute
(referred to in this clause as "the Second Party") specifying the matter
in dispute and designating as its representative in negotiations relating
to the dispute a person with authority to settle the dispute. The Second
Party shall, within 5 Business Days after receiving the First Party's
notice, give written notice to the First Party, designating as its
representative in negotiations relating to the dispute, a person with
similar authority.
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18.0 The parties to the dispute shall use their reasonable endeavours to
procure that the persons designated under clause 17 shall, within 10
Business Days of the last designation required by clause 17, following
whatever investigations each such person deems appropriate, seek to
resolve the dispute.
19.0 If the dispute is not resolved within the period referred to in clause 18
(or within such longer period as their respective representatives may
agree is appropriate) the parties to the dispute shall within a further
period of 10 Business Days (or such longer period as the representatives
may agree is appropriate) use their reasonable endeavours to agree, in
good faith, on a process for resolving the whole or part of the dispute
through means other than litigation or arbitration (including, without
limitation, further negotiations, mediation, conciliation, or independent
expert determination) and on:
19.1 The procedure and timetable for any exchange of documents and other
information relating to the dispute.
19.1 Procedural rules and a timetable for the conduct of the selected
mode of proceedings.
19.3 A procedure for selection and compensation of any neutral person who
may be employed by the parties in dispute.
19.4 Whether the parties should seek the assistance of a dispute
resolution organisation.
20.0 After the expiry of the time established by or agreed under clause 19 for
agreement on a dispute resolution process, a party which has complied with
the provisions of clauses 16 - 19 (inclusive) may, by written notice to
the other party to the dispute, terminate the dispute resolution process
provided for in those clauses and may then refer the dispute to
arbitration or commence court proceedings relating to the dispute.
21.0 Subject to clauses 16 - 19 (inclusive), any party may, by written notice
to any other party, require that, if a dispute between those parties
arising out of this agreement is not resolved within 10 Business Days of
receipt of such notice by the other party, the dispute shall be
immediately submitted for determination by a single arbitrator nominated
by the President, for the time being, of the Auckland District Law Society
after consultation with those parties.
22.0 In the event of a submission to arbitration pursuant to clause 21:
22.1 The arbitration shall be conducted pursuant to Arbitration ▇▇▇ ▇▇▇▇.
22.2 The parties' respective responsibilities for the costs of the
arbitration shall be determined by the arbitrator.
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NOTICES
23.0 Any written notice required to be given pursuant to this agreement shall
(without limitation) be deemed validly given if:
23.1 Delivered by hand or sent by facsimile transmission (provided that
the sender's facsimile machine confirms transmission to the intended
recipient) to the intended recipient's last known physical address
or facsimile number; and
23.2 Signed, in the case of a notice by PHOENIX or PLL, by a director of
the party giving that notice.
24.0 For the purposes of this agreement, any notice transmitted by facsimile or
delivered after 5.00pm on a Business Day, or at any time on a non Business
Day, shall be deemed received at 9.00am on the next Business Day.
25.0 Any notice required to be given to PHOENIX or the Manager shall be deemed
given to both of them if given to either of them in accordance with
clauses 23 and 24.
LIABILITY
26.0 Neither PHOENIX nor the Manager shall be liable for any cost, loss or
liability incurred by PLL except where it arises from PHOENIX's or the
Manager's gross neglect. The maximum combined liability of PHOENIX and the
Manager shall be limited to the value of the Services paid by PLL to
PHOENIX.
GENERAL
27.0 NON WAIVER - No waiver of any breach, or failure to enforce any provision,
of this agreement at any time by either party shall in any way limit or
waive the right of that party to subsequently enforce and compel strict
compliance with this agreement.
28.0 NO ASSIGNMENT - Neither party may transfer or assign any of its
liabilities or rights under this agreement to any other person without the
prior written consent of the other party, which consent may be withheld at
the other party's absolute discretion.
29.0 GOVERNING LAW AND JURISDICTION - This agreement is governed by the laws of
New Zealand and the parties submit to the exclusive jurisdiction of the
New Zealand courts in respect of all matters relating to this agreement.
30.0 PARTIAL INVALIDITY - If any provision of this agreement is or becomes
invalid or unenforceable, that provision shall be deemed deleted from this
agreement and such invalidity or unenforceability shall not affect the
other provisions of this agreement, all of which shall remain in full
force and effect to the extent permitted by law, subject to any
modifications made necessary by the deletion of the invalid or
unenforceable provisions.
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31.0 ENTIRE AGREEMENT - This agreement records the entire arrangement between
the parties relating to the matters dealt with in this agreement and
supercedes all previous arrangements, whether written, oral or both,
relating to such matters.
32.0 RELATIONSHIP BETWEEN THE PARTIES - Nothing expressed or implied in this
agreement shall constitute either party as the partner, agent, employee or
officer of, or as a joint venturer with, the other party, and neither
party shall make any contrary representation to any other person.
33.0 UNFORESEEN CIRCUMSTANCES - Neither party shall be liable for any act,
omission or failure under this agreement if that act, omission or failure
arises directly from a cause beyond the reasonable control of the party
concerned, including (without limitation) extreme weather conditions,
civil disruption or industrial action, provided that:
33.1 The party claiming the protection of this clause shall, as soon as
possible after becoming aware of such cause or the likelihood of
such cause, give the other party written notice accordingly.
33.2 Notwithstanding the intervention of such cause, each party shall
continue to use its best endeavours to perform its obligations as
required under this agreement (excluding any obligations which have
already been duly performed as at the date of the relevant cause)
despite that cause.
33.3 In any such event, neither party shall be deemed to have accepted
any extra costs which may be incurred or sustained by the other
party through a delay resulting from the cause.
34.0 SUBCONTRACTORS - PHOENIX shall not appoint subcontractors to perform any
Services on behalf of PHOENIX except with the express written consent of
PLL, such consent not to be unreasonably withheld. Notwithstanding any
such consent given by PLL in respect of a subcontractor, PHOENIX shall at
all times remain primarily liable to PLL for all acts and omissions of
that subcontractor, and PLL shall not be deemed to have accepted any
liability to that subcontractor by reason only of such consent.
35.0 GST - PLL shall pay to PHOENIX all GST (if any) payable in respect to the
Consultancy Fees and the Reimbursable Expenses.
EXECUTION
SIGNED on behalf of PHOENIX ) /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
MANAGEMENT LIMITED by )
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SIGNED on behalf of PACIFIC ) /s/ ▇. ▇. ▇▇▇▇▇
LITHIUM LIMITED by: ) ▇. ▇. ▇▇▇▇▇
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SCHEDULE 1
THE SERVICES
- Strategic Management
- Administration and management
- Accounting and liaison with Auditors
- Marketing
- Business development
- Corporate Governance
- Capital raising
- Shareholders relations
- Directors and shareholders meetings and minutes
- Share register
- Shareholders updates
- Instructing lawyers
- Provision of offices and equipment
- Staffing for the above functions