EXHIBIT 4.76
AMENDED AND RESTATED MANAGEMENT AGREEMENT
BETWEEN
IMA EXPLORATION INC.
AND
OXBOW INTERNATIONAL MARKETING CORP.
EFFECTIVE DATE
MAY 1, 2006
AMENDED AND RESTATED MANAGEMENT AGREEMENT
THIS AGREEMENT, originally made and effective as of the 1st day of July, 1999,
is amended and restated with effect as of the 1st day of May, 2006 (the
"Effective Date") BETWEEN: IMA EXPLORATION INC., having an office at 709 - ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,▇▇▇ ▇▇▇ (the "Corporation") OF
THE FIRST PART AND: OXBOW INTERNATIONAL MARKETING CORP. having an office at ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇ (the "Contractor") OF THE
SECOND PART AND WITNESS THAT WHEREAS:
A. The Contractor is a private corporation engaged in the provision of
executive level management services, primarily through its principal, ▇▇. ▇▇▇▇▇▇
▇▇▇▇▇▇.
B. Pursuant to a Management Agreement made and effective as of the 1st day
of July, 1999 between the Corporation and the Contractor (the "Original
Management Agreement") the Corporation retained the Contractor to provide
services with respect to the corporate and administrative affairs of the
Corporation, as more particularly set out therein.
C. The Corporation and the Contractor have agreed to amend certain
provisions of the Original Management Agreement and have agreed to enter into
this Amended and Restated Management Agreement with effect as and from the
Effective Date to record their respective rights and obligations.
NOW THEREFORE, In consideration of the mutual covenants, premises, agreements
and conditions herein contained and other good and valuable consideration (the
receipt and authenticity and sufficiency of which is hereby acknowledged by the
parties) the Contractor and the Corporation hereby agree as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS. For all purposes of this Agreement, except as otherwise
expressly provided:
1.1.1 "ACCRUED FEES" means any portion of any Annual Fee that has been
accrued but not yet paid to the Consultant as at the date of the
termination of this Agreement ;
1.1.2 "ACCRUED EXPENSES" means any Expenses in respect of which the
Consultant is entitled to re-imbursement as at the date of termination
of this Agreement;
1.1.3 "ANNUAL FEE" means the sum payable by the Corporation to the Contractor
pursuant hereto in consideration of the performance of the Services in
respect of each year of the Term, and which is, as at the Effective
Date, the sum of $250,000 per annum, pro rated in respect of partial
years, and payable in equal consecutive monthly installments by payment
of the Monthly Installments;
1.1.4 "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;
1.1.5 "CHANGE OF CONTROL" For the purposes of this Agreement, a "Change of
Control" shall be deemed to have occurred when any of the following
occur: (a) a majority of the directors elected at any annual or special
general meeting of shareholders of the Corporation are not individuals
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nominated by the Corporation's then incumbent Board of Directors; (b)
an event or series of events occurs, including, without limitation, a
take over bid (as defined in the Securities Act (British Columbia), as
a result of which 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; (c) 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; (d) the Corporation sells all or substantially all of its assets;
1.1.6 "DEFERRED BONUS" means the sum of $461,500 payable by the Corporation
to the Contractor in accordance with the provisions hereof;
1.1.7 "EFFECTIVE DATE" means May 1st, 2006;
1.1.8 "EXPENSES" means all reasonable expenses incurred by the Contractor in
connection with the business of the Corporation or any of its
subsidiaries, including without limitation travel expenses, car
rentals, food and lodging, sundry expenses, and all other out of pocket
expenses.
1.1.9 "HEREIN" and "HEREUNDER" and other words of similar import refer to
this Agreement as a whole and not to any particular section,
sub-section or other subdivision, unless otherwise expressly provided;
1.1.10 "MONTHLY INSTALLMENT" means each monthly installment of the Annual Fee
payable by the Corporation to the Contractor pursuant to Section 3.1
hereof and which is, as at the Effective Date, the sum of $20,833.33
per month;
1.1.11 "SERVICES" means: (a) making available to the Corporation the services
of ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 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 and the Contractor may
agree.
1.1.12 "TERM" means the term of this Agreement, commencing on the Effective
Date and continuing until this Agreement is terminated in accordance
with the provisions hereof; and
1.1.13 "THIS AGREEMENT" means this Amended and Restated Management Agreement,
as it may from time to time supplemented or amended by one or more
agreements entered into pursuant to the applicable provisions hereof;
1.2 INTERPRETATION. In this Agreement: (a) all references to currency mean
lawful currency of Canada; and (b) the headings are for convenience
only and are not intended as a guide to interpretation of this
Agreement or any portion hereof;
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2. ENGAGEMENT CONFIRMED
2.1 ENGAGEMENT. The Corporation hereby confirms the engagement of the
Contractor to continue to provide the Services during the Term on the terms and
conditions herein set forth and the Contractor hereby agrees to continue to
provide the Services to the Corporation during the Term on the terms and
conditions herein set forth.
3. COMPENSATION
3.1 FEES. During the Term the Corporation will pay the Contractor in
respect of each calendar year of the Term the Annual Fee, prorated in respect of
partial calendar years. The Corporation will pay the Annual Fee by paying to the
Contractor, on the first day of each month during each year of the Term the
Monthly Installment, without set-off abatement or deduction.
3.2 REIMBURSEMENT OF EXPENSES. During the Term, in addition to paying the
Annual Fee, the Corporation will reimburse the Contractor for all Expenses
within 15 days of presentation of receipts or other evidence satisfactory to the
Corporation in respect to such Expenses.
3.3 STOCK OPTIONS. The Corporation will grant the Contractor, stock options
in an amount and on terms determined by the Board of Directors of the
Corporation from time to time.
3.4 DEFERRED BONUS. In addition to the foregoing, the Corporation shall pay
to the Contractor the Deferred Bonus but only as hereinafter expressly provided.
3.5 ADJUSTMENT TO COMPENSATION. On each anniversary of the Effective Date
during the term of this Agreement, 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 the Term, and thereafter.
4. CONTRACTOR'S RIGHT TO TERMINATE
4.1 SIXTY DAYS NOTICE. The Contractor may at any time terminate its
obligations under this Agreement by delivering written notice of termination to
the Corporation. The Agreement shall terminate on the date specified in the said
written notice, provided that the date of termination shall not be less than 60
days after the date of delivery of such notice to the Corporation. Upon
termination pursuant to this provision the Contractor shall be entitled to
receive and the Corporation shall pay to the Contractor within three Business
Days after the date of such termination the aggregate of: (a) all Accrued Fees
and Accrued Expenses to the date of termination.
4.2 DEFAULT BY CORPORATION. The Contractor may at any time terminate its
obligations under this Agreement if there has been a material breach or default
of any term of this Agreement by the Corporation and such material breach or
default has not been remedied, or waived by the Contractor, within 30 days after
written notice of the material breach or default has been delivered by the
Contractor to the Corporation. Upon termination pursuant to this provision the
Contractor shall be entitled to receive and the Corporation shall pay to the
Contractor within three Business Days after the date of such termination the
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aggregate of: (a) all Accrued Fees and Accrued Expenses to the date of
termination; (b) the Deferred Bonus; and, (c) an amount equal to the Annual Fee.
4.3 CHANGE OF CONTROL. In the event of a Change of Control of the
Corporation, the Contractor may terminate the Contractor's obligations under
this Agreement by delivering to the Corporation, within 180 days of the date on
which the Change of Control occurs, written notice of termination. The Agreement
shall terminate on the date specified in the said written notice, provided that
the date of termination shall not be less than 30 days after the date of
delivery of such notice to the Corporation. Upon termination pursuant to this
provision the Contractor shall be entitled to receive and the Corporation shall
pay to the Contractor within three Business Days after the date of such
termination the aggregate of: (a) all Accrued Fees and Accrued Expenses to the
date of termination; (b) the Deferred Bonus; and, (c) an amount equal to three
times the Annual Fee;
5. CORPORATION'S RIGHT TO TERMINATE
5.1 CAUSE. The Corporation may terminate the Contractor's engagement under
this Agreement by delivering to the Contractor written notice of termination if
the Contractor or any of its directors, officers, or employees has acted
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 has acted 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. The Agreement shall terminate on the date specified in the said
written notice. Upon termination pursuant to this provision the Contractor shall
be entitled to receive and the Corporation shall pay to the Contractor within
three Business Days after the date of such termination the aggregate of: (a) all
Accrued Fees and Accrued Expenses to the date of termination.
5.2 CONVICTION. The Corporation may terminate the Contractor's engagement
under this Agreement by delivering to the Contractor written notice of
termination if the Contractor or any of its directors, officers or employees
have been convicted 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. The Agreement shall terminate on the
date specified in the said written notice. Upon termination pursuant to this
provision the Contractor shall be entitled to receive and the Corporation shall
pay to the Contractor within three Business Days after the date of such
termination the aggregate of: (a) all Accrued Fees and Accrued Expenses to the
date of termination.
5.3 BANKRUPTCY. The Corporation may terminate the Contractor's engagement
under this Agreement by delivering to the Contractor written notice of
termination if the Contractor or any of its directors, officers or employees
files a voluntary petition in bankruptcy, or is adjudicated bankrupt or
insolvent, or files any petition or answer under any present or future statute
or law relating to bankruptcy, insolvency or other relief for debtors. The
Agreement shall terminate on the date specified in the said written notice. Upon
termination pursuant to this provision the Contractor shall be entitled to
receive and the Corporation shall pay to the Contractor within three Business
Days after the date of such termination the aggregate of: (a) all Accrued Fees
and Accrued Expenses to the date of termination
5.4 DEFAULT BY CONTRACTOR. The Corporation may terminate the Contractor's
engagement under this Agreement by delivering to the Contractor written notice
of termination if there has been a material breach or default of any term of
this Agreement by the Contractor and such material breach or default has not
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been remedied, or waived by the Corporation, within 30 days after written notice
of the material breach or default has been delivered by the Corporation to the
Contractor. Upon termination pursuant to this provision the Contractor shall be
entitled to receive and the Corporation shall pay to the Contractor within three
Business Days after the date of such termination the aggregate of: (a) all
Accrued Fees and Accrued Expenses to the date of termination.
5.5 DEATH OR DISABILITY. The Corporation may terminate the Contractor's
engagement under this Agreement by delivering to the Contractor written notice
of termination if ▇▇▇▇▇▇ ▇▇▇▇▇▇ dies or becomes permanently disabled, as
determined by a competent physician chosen by the Corporation, or disabled for a
period exceeding 360 consecutive days or 360 days calculated on a cumulative
basis over any two year period during the Term of this Agreement. Upon
termination pursuant to this provision the Contractor shall be entitled to
receive and the Corporation shall pay to the Contractor within three Business
Days after the date of such termination the aggregate of: (a) all Accrued Fees
and Accrued Expenses to the date of termination; (b) the Deferred Bonus; and,
(c) an amount equal to the Annual Fee.
5.6 CHANGE OF CONTROL. In the event of a Change of Control of the
Corporation, the Corporation may terminate the Contractor's engagement under
this Agreement by delivering to the Contractor, within 180 days of the date on
which the Change of Control occurs, written notice of termination. The Agreement
shall terminate on the date specified in the said written notice, provided that
the date of termination shall not be less than 30 days after the date of
delivery of such notice to the Contractor. Upon termination pursuant to this
provision the Contractor shall be entitled to receive and the Corporation shall
pay to the Contractor within three Business Days after the date of such
termination the aggregate of: (a) all Accrued Fees and Accrued Expenses to the
date of termination; (b) the Deferred Bonus; and, (c) an amount equal to three
times the Annual Fee;
5.7 NOTICE. The Corporation may at any time terminate the Contractor's
engagement under this Agreement by delivering written notice of termination to
the Contractor. The Agreement shall terminate on the date specified in the said
written notice. Upon termination pursuant to this provision the Contractor shall
be entitled to receive and the Corporation shall pay to the Contractor within
three Business Days after the date of such termination the aggregate of: (a) all
Accrued Fees and Accrued Expenses to the date of termination; (b) the Deferred
Bonus; and, (c) an amount equal to three times the Annual Fee;
6. PAYMENTS TO CONTRACTOR.
6.1 PAYMENT OPTIONS. The Contractor may, by notice to the Corporation,
elect to take any payments to which it is entitled pursuant to the provisions of
any subsection of Sections 4 or 5, as the case my be, in a lump sum payment, or
in installments over such period as the Contractor my specify.
6.2 LIQUIDATED DAMAGES. Any payments made pursuant to Sections 4 or 5 will
be made as liquidated damages and not as a penalty, and the parties have agreed
in advance that such amount represent a genuine pre-estimate of the damages to
be suffered by the Contractor should this Agreement be terminated pursuant to
the provisions of either Section 4 or 5.
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7. GENERAL
7.1 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,
excepting only such information as is 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 7.1.
7.2 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.
7.3 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.
7.4 ENUREMENT. This Agreement shall enure to the benefit of and be binding
upon the parties hereto and their respective successors and permitted assigns.
7.5 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 Contractor:
Oxbow International Marketing Corporation
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
(b) If to the Corporation:
IMA Exploration Inc.
▇▇▇ - ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
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
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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.
7.6 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.
7.7 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 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.
7.8 ENTIRE AGREEMENT. This Agreement constitutes the entire amended and
restated agreement between the parties hereto and supersedes all previous
expectations, understanding, communications, representations and agreements,
whether verbal or written between the parties hereto with respect to the subject
matter of this Agreement, including without limitation the Original Management
Agreement, No agreements or representations, oral or otherwise, expressed or
implied with respect to the subject matter hereof have been made by either party
which are not set forth expressly in the Agreement.
7.9 NO ASSIGNMENT. This Agreement may not be assigned by either party
hereto without the written consent of the other.
7.10 COUNTERPARTS.This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute a single agreement which may be sufficiently evidenced
by one counterpart. A facsimile of an executed counterpart hereof is hereby
deemed to be an originally executed counterpart hereof
IN WITNESS WHEREOF the parties have caused this Agreement to be executed and
delivered as of the Effective Date.
IMA EXPLORATION INC.
Per:
/s/ ▇▇▇▇▇▇ ▇▇▇▇
____________________
Authorized Signatory
OXBOW INTERNATIONAL MARKETING CORP.
Per:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
____________________
▇▇▇▇▇▇ ▇▇▇▇▇▇
President