EXHIBIT 4.11
MANAGEMENT SERVICES AGREEMENT
BY AND AMONG
CENTRASIA MINING CORP.,
LAKEHEAD GEOLGOIGICAL SERVICES INC.,
AND
XXXXXXX X. XXXXXXXX
EFFECTIVE DATE: SEPTEMBER 1, 2007
MANAGEMENT SERVICES AGREEMENT
DATED effective as of the 1st day of September, 2007.
BETWEEN:
CENTRASIA MINING CORP., a British Columbia corporation whose
address is 000 - 0000 X. Xxxxxxxx Xx., Xxxxxxxxx, XX X0X 0X0
(hereinafter referred to as the "Company", which term includes
all subsidiaries of the Company)
OF THE FIRST PART
AND:
LAKEHEAD GEOLOGICAL SERVICES INC., an Ontario corporation
whose address is 000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx
Xxxxxxxx X0X 0X0
(hereinafter referred to as the "Lakehead")
OF THE SECOND PART
AND:
XXXXXXX X. XXXXXXXX, Businessman, of 000 Xxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
(hereinafter referred to as the "Xxxxxxxx")
OF THE THIRD PART
WHEREAS:
A. The Company is a public company the common shares of which are listed
and posted for trading on the TSX Stock Exchange;
B. The Company wishes to retain Lakehead to provide services with respect
to the management of the Company;
X. Xxxxxxxx is an employee of Lakehead; and
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D. Lakehead has agreed to provide management services to the Company, and
in particular the provision of Xxxxxxxx as the President of the
Company, on the terms and subject to the conditions hereinafter set
forth;
NOW, THEREFORE, THIS AGREEMENT WITNESSETH that in consideration of the premises
and the mutual covenants and agreements hereinafter set forth, IT IS AGREED as
follows:
1. APPOINTMENT
(1) The Company hereby appoints Lakehead and Lakehead hereby accepts such
appointment to provide Management Services (as hereinafter defined) to the
Company for an initial term of two (2) year from the date of this Agreement, and
thereafter annually, and subject to the rights of the parties to earlier
termination as provided for in Section 5 below.
(2) During the term of this Agreement, Lakehead shall diligently and
faithfully devote the time, effort and ability to the Company's affairs and
business necessary to perform its duties under this Agreement. Lakehead shall
conduct the operations of the Company in an efficient, trustworthy and
businesslike manner to the advantage and benefit of the Company.
2. MANAGEMENT SERVICES
(1) Lakehead agrees to provide to the Company the services of Xxxxxxxx as
the President of the Company on substantially a full time basis (that is,
approximately 90% of Xxxxxxxx'x working hours based on a forty hour work week)
during the term of this Agreement (herein referred to as the "Management
Services").
(2) It is the intent of the parties that Xxxxxxxx be a director of the
Company at all times while this Agreement is in force, and the Company shall
take such steps as it is permitted by law such that Xxxxxxxx will become and so
remain a director. Xxxxxxxx hereby consents to being a director of the Company
at all times when this Agreement is in force.
(3) Except as otherwise acknowledged herein, during the term of this
Agreement, each of Lakehead and Xxxxxxxx agree that it shall not, without the
prior written consent of the Company, directly or indirectly engage in any
business activity or enterprise competitive with the Company in the Russian
Federation, Kyrgyzstan, Kazakhstan, Uzbekistan and Tajikistan, and, without
restricting the generality of the foregoing, Xxxxxxxx shall not accept any new
position with another business entity, be it as a director or officer or
otherwise, without the prior written consent of the Board of Directors of the
Company.
(4) The Company acknowledges that Xxxxxxxx will be entitled to three (3)
weeks paid leave per year to be taken at such time as the Board may judge to be
convenient to the Company.
3. REMUNERATION
(1) The Company hereby agrees to pay to Lakehead, as remuneration for the
provision of the Management Services, the sum of $12,500 per month payable
retroactively from July 1, 2007, which sum is subject to review on the first
anniversary of this Agreement.
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(2) The Company further agrees to reimburse to Lakehead the actual
out-of-pocket expenses incurred by Lakehead, its consultants, advisors,
sub-agents and employees, in connection with the provision of any of the
services hereunder. For all such expenses, Lakehead shall furnish to the Company
statements with full written back-up on a monthly basis. The Company shall not
be responsible for paying any "benefits" to Lakehead employees. Notwithstanding
the foregoing, the Company shall bear the cost of customary travel and accident
insurance incurred by Xxxxxxxx while on Company business outside of Canada,
including the costs of emergency medical evacuation, where such coverage is not
otherwise provided by the Company to Xxxxxxxx.
4. CONFIDENTIALITY
(1) Lakehead acknowledges that it and its consultants, advisors, sub-agents
and employees, have and will acquire information about certain matters and
things which are confidential or secret to the Company and which information is
the exclusive property of the Company (the "Confidential Information"). Lakehead
undertakes not to disclose, and to ensure that its consultants, advisors,
sub-agents and employees do not disclose, the Confidential Information or any
information which, in good faith and conscience, ought to be treated as
confidential, to any third party either during the term of this Agreement or
after, except as may be necessary in the proper discharge of its duties, as
required by law, or with the prior written permission of the Company. The
foregoing obligations shall continue beyond the termination of this Agreement
and shall be binding upon Lakehead's successors and assigns. Lakehead agrees
that disclosure by it of such information or trade secrets may result in
irreparable injury and damage to the Company, which will not be adequately
compensable in money damages, that the Company will have no adequate remedy at
law therefor, and that the Company shall have the right, and may, without
objection from Lakehead, obtain such preliminary, temporary or permanent
mandatory or restraining injunctions, orders or decrees as may be necessary to
protect the Company against, or on account of any breach by Lakehead of the
provisions of this section. Nothing herein shall be construed as preventing the
Company from pursuing any other remedies available to it for such breach or
threatened breach, including the recovery of damages from Lakehead.
(2) Xxxxxxxx acknowledges that he has and will acquire Confidential
Information. Xxxxxxxx undertakes not to disclose the Confidential Information or
any information which, in good faith and conscience, ought to be treated as
confidential, to any third party either during his employment or after, except
as may be necessary in the proper discharge of his duties, as required by law,
or with the prior written permission of the Company. The foregoing obligations
shall continue beyond the termination of this Agreement and shall be binding
upon Xxxxxxxx'x heirs, executors, successors and assigns. Xxxxxxxx agrees that
disclosure by him of such information or trade secrets may result in irreparable
injury and damage to the Company, which will not be adequately compensable in
money damages, that the Company will have no adequate remedy at law therefor,
and that the Company shall have the right, and may, without objection from
Xxxxxxxx, obtain such preliminary, temporary or permanent mandatory or
restraining injunctions, orders or decrees as may be necessary to protect the
Company against, or on account of any breach by Xxxxxxxx of the provisions of
this paragraph. Nothing herein shall be construed as preventing the Company from
pursuing any other remedies available to it for such breach or threatened
breach, including the recovery of damages from Xxxxxxxx.
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5. TERMINATION
(1) Lakehead may terminate this Agreement by three months written notice to
the Company, for any reason. The Company may waive such notice, in whole or in
part. On such termination Xxxxxxxx shall be deemed to have resigned from all of
his positions with the Company. Lakehead will be entitled on termination to fees
and expenses due to the date of termination.
(2) The Company may terminate this Agreement "for cause" (theft, fraud or
material dishonesty or misconduct by Lakehead, its consultants, advisors,
sub-agents and employees, involving the property or affairs of the Company)
without any notice or compensation in lieu thereof. On such termination,
Xxxxxxxx shall be deemed to have resigned from all of his positions with the
Company.
(3) This Agreement will terminate in the event of the death of Xxxxxxxx
prior to the end of the term of this Agreement. The Company may terminate this
Agreement in the event Xxxxxxxx is not available or able to work by reason of
illness or mental or physical disability or incapacity which lasts for an
uninterrupted period of not less than six months, and on such termination
Xxxxxxxx shall be deemed to have resigned from all of his positions with the
Company.
(4) The Company may terminate this Agreement in its sole and absolute
discretion for any reason and without cause, and in the event of such
termination or in the event of the Constructive Dismissal of Xxxxxxxx, Xxxxxxxx
shall be deemed to have resigned from all of his positions with the Company and
the Company shall pay to Lakehead a lump sum payment equal to twelve times the
monthly fee payable to Lakehead at the time of termination for the provision of
Management Services.
(5) Save and except as otherwise provided in this Agreement, "Constructive
Dismissal" for the purposes of this Agreement shall mean:
(a) Xxxxxxxx ceasing to be a director (otherwise than pursuant to
his voluntary resignation), or any other material reduction in
Xxxxxxxx'x title, reporting responsibilities, function,
responsibility or authority with the Company; and
(b) any material reduction in Lakehead's total compensation
package, as provided herein.
(6) Without limiting any other rights Lakehead may have under this
Agreement, in the event of a Change of Control, as defined below, Lakehead may
elect, during the six month period immediately following the date of Change of
Control, to terminate this Agreement, in which case such termination shall be
deemed to be a Constructive Dismissal of Xxxxxxxx by the Company.
(7) In this Agreement, "Change of Control" shall mean the occurrence, after
the date hereof, of the acquisition of common shares of the Company or other
securities of the Company having the right to vote generally in the election of
directors of the Company (the common shares and such other securities are
hereinafter referred to as the "Voting Shares") or of securities ("Convertible
Securities") convertible into, exchangeable for or representing the right to
acquire Voting Shares of the Company as a result of which a person, group of
persons or persons acting jointly or in concert, or persons associated or
affiliated within the meaning of the Securities Act
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(British Columbia) with any such person, group of persons or any of such persons
acting jointly or in concert (collectively, the "Acquirers"), beneficially own
Voting Shares of the Company and/or Convertible Securities such that, assuming
the conversion, exchange or exercise of Convertible Securities beneficially
owned by the Acquirers, the Acquirers would beneficially own Voting Shares of
the Company that would entitle the holders thereof to cast more than 25% of the
votes attaching to all Voting Shares in the capital of the Company that may be
cast to elect directors of the Company provided, however, that transfers among
now affiliated or associated corporations, persons or legal entities shall not
result in a "Change of Control".
6. PERSONAL SERVICES
(1) The Management Services to be provided by Lakehead pursuant hereto are
personal in character, and neither this Agreement nor any rights or benefits
arising thereunder are assignable by Lakehead without the previous written
consent of the Company.
7. NOTICES
(1) Any notice, direction or other instrument required or permitted to be
given under this Agreement shall be in writing and shall be given by the
delivery of same or by mailing same in prepaid registered or certified mail in
Canada or by sending same by telefax or other similar form of communication, in
each case addressed to the intended recipient at the address of the respective
party set out on the first page hereof (in the case of the Company to the
attention of the Secretary and General Counsel).
(2) Any notice, direction or other instrument aforesaid will, if delivered,
be deemed to have been given and received on the day it was delivered, and if
mailed, be deemed to have been given and received on the fifth business day
following the date of mailing, except in the event of disruption of the postal
service in which event notice will be deemed to be received only when actually
received and, if sent by telefax or other similar form of communication, on the
day it was actually received.
(3) Any party may, at any time, give notice in writing to the others of any
change of address, and from and after the giving of such notice, the address
therein specified will be deemed to be the address of such party for the
purposes of giving notice hereunder.
8. GENERAL
(1) The provisions of this Agreement shall enure to the benefit of and be
binding upon the legal personal representatives of Lakehead and the successors
and assigns of the Company. For this purpose, the terms "successors" and
"assigns" shall include any person, firm or corporation or other entity which at
any time, whether by merger, purchase or otherwise, shall acquire all or
substantially all of the assets or business of the Company.
(2) Each of the Company and Lakehead hereby represents and warrants to the
other that it is duly incorporated, validly existing and in good standing under
the laws of the jurisdiction of its incorporation and has the power and capacity
to enter into this Agreement and to carry out its terms, and the execution and
delivery of this Agreement by it has been duly and validly authorized by all
necessary corporate action.
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(3) Time shall be of the essence of this Agreement.
(4) This Agreement is governed by and interpreted in accordance with the
laws of the Province of British Columbia.
(5) The terms and provisions herein contained constitute the entire
agreement between the parties and shall supersede all previous oral or written
communications. In particular, the agreement between the 0724000 B.C. Ltd., a
wholly-owned subsidiary of the Company, and Xxxxxxxx dated April 1, 2004, which
was assigned to the Company by 0724000 B.C. Ltd. effective September 14, 2005,
is hereby deemed to be terminated as of June 30, 2007. No amendments of this
Agreement shall be valid unless made in writing and duly executed by all
parties.
(6) The failure of a party to insist on strict performance of any provision
of this Agreement or to exercise any right, power or remedy upon a breach hereof
shall not constitute a waiver of any provision of this Agreement or limit that
party's rights thereafter to enforce any provision or exercise any right, power
or remedy.
(7) Each of the parties agrees that it shall from time to time take such
actions and execute such additional instruments as may be reasonably necessary
to implement and carry out the intent and purposes of this Agreement.
(8) If any provision, word or clause of this Agreement shall be held to be
illegal or invalid for any reason, such illegality of invalidity shall not
affect the remaining provisions which shall be fully severable, and this
Agreement shall be construed and enforced without regard to such illegal or
invalid provision. The parties agree to execute such additional documents as may
be necessary to give effect to any clause, term or part hereof which is
determined to be illegal, unenforceable, in conflict with any law or contrary to
public policy.
(9) Lakehead acknowledges that it has read and that it fully understands
this Agreement and it acknowledges and agrees that the Company has given it the
opportunity to seek, and has recommended that it obtain, independent legal
advice with respect to the subject matter of this Agreement. Further, Lakehead
hereby represents and warrants to the Company that it has sought independent
legal advice or waives such advice. Xxxxxxxx acknowledges that he has read and
that he fully understands this Agreement and he acknowledges and agrees that the
Company has given him the opportunity to seek, and has recommended that he
obtain, independent legal advice with respect to the subject matter of this
Agreement. Further, Xxxxxxxx hereby represents and warrants to the Company that
he has sought independent legal advice or waives such advice.
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(10) This Agreement may be signed in counterpart.
IN WITNESS WHEREOF the parties have duly executed this Agreement as of the day
and year first above written.
CENTRASIA MINING CORP. LAKEHEAD GEOLOGICAL SERVICES INC.
Per: /s/ Xxxx XxXxxx Per: /s/ Xxxxxxx Xxxxxxxx
-------------------------------- --------------------------------
Name: Xxxx XxXxxx Name: Xxxxxxx Xxxxxxxx
Title: Director & CFO Title: President
SIGNED, SEALED and DELIVERED )
by XXXXXXX X. XXXXXXXX in )
the presence of: )
)
)
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Signature )
)
--------------------------- ) /s/ Xxxxxxx Xxxxxxxx
Print Name ) -------------------------------
) XXXXXXX X. XXXXXXXX
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Address )
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)
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Occupation )
