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EXHIBIT 10(ii)(A)
AGREEMENT FOR MANAGEMENT AND CONSULTING SERVICES
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AGREEMENT FOR MANAGEMENT AND CONSULTING SERVICES
This Agreement for Management and Consulting Services (hereinafter the
"Agreement") is made and entered into this the 1st day of June, 1996, by and
between Metaline Contact Mines, a Washington corporation (hereinafter the "MCM")
and Nor-Pac Limited Company, an Idaho limited liability company (hereinafter
"NorPac").
W I T N E S S E T H
Whereas, MCM is engaged in the exploration, development and mining
industry; and
Whereas, MCM is the Managing Member of Metaline Contact Mines LLC, a
Delaware limited liability company (hereinafter "MCMLLC"), as well as other
legal entities that may, from time-to-time, be managed by MCM (all of which
combined shall hereinafter be referred to as the "Affiliates"); and
Whereas, MCMLLC is engaged in the land and timber industry; and
Whereas, Nor-Pac is a natural resources firm composed of persons with
technical, commercial, management, and business knowledge and experience in the
exploration, development and mining industry, the land and timber industry, the
securities industry, and is engaged, among other things, in the business of
providing management and financial consulting services pertaining thereto; and
Whereas, MCM desires to have continual access to the expertise,
knowledge and experience of Nor-Pac, and therefore desires to employ Nor-Pac, on
a continual basis, to advise and consult with MCM concerning MCM's business of
exploration, development and mining, MCMLLC's business of land and timber, and
to manage certain aspects of MCM's business operations, and Nor-Pac desires to
provide such services to MCM.
Now Therefore, in consideration of the mutual covenants and agreements
herein contained, the parties hereto agree as follows:
1. Representations and Warranties of the Parties
1.01 MCM represents and warrants the following:
1.01.01 that it is a corporation duly incorporated, validly
existing, and in good standing in the State of
Washington;
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1.01.02 that it has all requisite corporate authority to enter
into and perform this Agreement and all transactions
contemplated herein, and that all corporate and other
actions required to authorize it to enter into and
perform this Agreement have been properly taken;
1.01.03 that it will not breach any other agreement or
arrangement by entering into or performing this
Agreement, has full authority to delegate, and that this
Agreement has been duly executed and delivered by it and
is valid and binding in accordance with its terms.
1.02 Nor-Pac represents and warrants the following:
1.02.01 that it is a limited liability company duly organized,
validly existing, and in good standing with the State of
Idaho;
1.02.02 that it has all requisite limited liability company
authority to enter into and perform this Agreement and
all transactions contemplated herein, and that all
actions required to authorize it to enter into and
perform this Agreement have been properly taken;
1.02.03 that it will not breach any other agreement or
arrangement by entering into or performing this
Agreement, and that this Agreement has been duly
executed and delivered by it and is valid and binding it
in accordance with its terms.
2. NATURE OF NOR-PAC'S SERVICES
2.01 Nor-Pac agrees that at all times during the term of this
Agreement it will make available to MCM, and its Affiliates, the
services of its officers and employees for the purpose of
advising and consulting with MCM concerning all phases of MCM's
business affairs and operations. Specifically, Nor-Pac will
provide MCM with the following services:
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2.01.01 assist MCM and its Affiliates in determining its short
and long term capital requirements, in determining the
best method of fulfilling such capital requirements, and
in locating sources of equity and long and short term
debt financing for MCM pertaining thereto.
2.01.02 assist MCM and its Affiliates in determining the need
for and in devising and installing financial, accounting
and other office and business systems and controls
relating to MCM's business operations.
2.01.03 assist MCM and its Affiliates in developing business,
investment and management plans and programs, in
formulating policies and objectives, and carrying out
such plans, programs and policies required for the
efficient and successful operation of MCM's business
operations.
2.01.04 assist MCM in developing a public trading market for
MCM's securities.
2.01.05 assist MCM and its Affiliates in finding, researching,
evaluating, leasing, acquiring, joint-venturing and in
any and all ways securing the rights to natural resource
properties.
2.01.06 provide MCM with a monthly financial statement of the
amount of expenses incurred by Nor-Pac, or its
authorized representatives and agents, in connection
with the performance of the services contemplated by
this Agreement, and the fees owed Nor-Pac under the
terms and conditions of this Agreement.
3. MCM'S UNDERTAKINGS
3.01 MCM agrees to assist and cooperate with Nor-Pac in connection
with it providing the services contemplated herein, and in
achieving the objectives of the successful and efficient
business operation contemplated herein.
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4. FEES
4.01 As compensation for all consulting, management and advisory
services rendered hereunder by Nor-Pac, MCM shall pay Nor-Pac
according to Schedule "A" attached hereto.
5. EXPENSES
5.01 Except as hereinafter provided, all ordinary and necessary
business expenses incurred by Nor-Pac, or its authorized
representatives and agents, in connection with the performance
of the services contemplated herein, shall be the responsibility
of and paid for by MCM.
6. TERM
6.01 The term of this Agreement shall be so long as the Mining Lease
With Purchase Option, dated September 1, 1997, between MCM,
MCMLLC and Cominco American Incorporated (hereinafter the
"Cominco Lease") is in full force and effect, and so long
thereafter as both parties shall agree in writing.
7. STATUS AS AN INDEPENDENT CONTRACTOR
7.01 The relationship between MCM and Nor-Pac shall not constitute
Nor-Pac an agent of MCM, or any of MCM's affiliates, for any
purposes. Neither Nor-Pac, nor its authorized representatives
and agents, in their capacities as such, shall have any right to
bind MCM, transact any business in MCM's name or on its behalf,
or make any promises or representations on behalf of MCM without
the written consent of MCM, except as authorized elsewhere in
this Agreement. Additionally, it is not the intention of the
parties hereto to create, under any circumstances, an express
trust or association, and it is likewise not the intention of
the parties hereto to create a partnership and nothing herein
shall be construed as creating an express trust, association or
partnership. The relationship of MCM and Nor-Pac is that of an
independent contractor.
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8. NOTICES
8.01 All notices hereunder shall be in writing and shall be delivered
by certified mail, return receipt requested, and such mailing
thereof shall be deemed the act of giving notice. Until a change
of address is communicated as indicated herein, such mailed
notices shall be addressed, as follows:
as to MCM: Metaline Contact Mines
c/o Preston, Gates & Ellis LLP
601 W. Riverside Avenue
Suite 1400
Spokane, Washington 99201
Attention: Michael C. Ormsby
as to Nor-Pac: Nor-Pac Limited Company
P.O. Box 387
Murray, Idaho 83874
Attention: President
9. ARBITRATION
9.01 If there is any disagreement, dispute or controversy
(hereinafter collectively referred to as a "dispute") between
the parties with respect to any matter arising under this
Agreement of the construction hereof, then the dispute shall be
determined by arbitration in accordance with the following
procedures:
9.01.01 the parties shall appoint a single mutually acceptable
arbitrator. If the parties cannot agree upon a single
arbitrator, then the party on one side of the dispute
shall name an arbitrator, and give notice thereof to the
party on the other side of the dispute. The party on the
other side of the dispute shall, within Fourteen (14)
days of receipt of the notice name an arbitrator, and
the two arbitrators so named, within Seven (7) days of
the naming of the latter of them shall name a third
arbitrator, and the three (3) arbitrators shall proceed
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to arbitrate the dispute within thirty (30) days
following the naming of the latter of them, and the
decision of the arbitrator or the majority of them shall
be conclusive and binding upon the parties. The costs of
arbitration shall be borne equally by the parties to the
dispute unless otherwise determined by the arbitrator(s)
in the award.
9.01.02 If the party on the other side of the dispute shall fail
to name its arbitrator within the allocated time, then
the arbitrator named may make a determination of the
dispute.
9.01.03 The arbitration shall be conducted in accordance with
the American Arbitration Association in Wallace, Idaho.
10. ASSIGNMENT
10.01 Nor-Pac may assign this Agreement to a Nor-Pac Affiliated
Company upon written notice to MCM. Nor-Pac may assign this
Agreement at any time with the prior written consent of MCM,
which consent will not be unreasonably withheld.
10.01.01 For the purposes of this Paragraph 9.01, the term
"Nor-Pac Affiliated Company" shall mean an entity
controlling, controlled by or under common control with
Nor-Pac through direct or indirect ownership of greater
than Fifty Percent (50%) of equity or voting interest.
10.02 In the event Nor-Pac assigns this Agreement pursuant to
paragraph 10.01 above, it shall have no further duties or
obligations under this Agreement.
11. HEADINGS
11.01 The paragraph headings are for convenience only, and shall not
be used in the construction of this Agreement.
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12. GOVERNING LAW
12.01 This Agreement shall be governed by the laws of the State of
Idaho.
13. FURTHER ASSURANCES
13.01 From time to time, upon the request of the other, MCM and
Nor-Pac will execute and deliver to each other documents and
instruments and take other actions as reasonably may be
necessary or advisable in order to carry out the transactions
contemplated hereby.
14. SCHEDULES
14.01 All schedules mentioned in this Agreement shall be attached
hereto and shall form an integral part hereof.
15. WAIVER
15.01 No waiver by any party of a breach of any of the provisions of
this Agreement shall be construed as a waiver of any subsequent
breach, whether of the same or a different character.
16. AMENDMENTS
16.01 This Agreement may not be modified or amended except by the
written agreement of the parties.
17. INUREMENT
17.01 This Agreement shall run to and be binding upon each of the
parties hereto, their heirs, legatees, legal representatives,
successors or assigns, respectively.
18. ENTIRE AGREEMENT
18.01 This Agreement sets forth the entire agreement of the parties
and supersedes all other previous and contemporaneous
agreements, representations, warranties, or understandings,
written or oral.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement for
Management and Consulting Services as of the day and year first above written.
NOR-PAC LIMITED COMPANY METALINE CONTACT MINES
By: /s/ JOHN W. BEASLEY By: /s/ RICHARD L. HOWELL
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John W. Beasley Richard L. Howell
Secretary President
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SCHEDULE "A" TO
AGREEMENT FOR MANAGEMENT AND CONSULTING SERVICES
Pursuant to Article 4 of the Agreement for Management and Consulting
Services, dated June 1, 1998, between Metaline Contact Mines ("MCM") and Nor-Pac
Limited Company ("Nor-Pac"), the compensation to be paid Nor-Pac shall be as
follows:
1. For the balance of the year ending December 31, 1998:
1.01 Five Hundred Thousand (500,000) shares of MCM's authorized, but
unissued, common stock. Said shares to be issued quarterly
commencing July 1, 1998, as to Two Hundred Fifty Thousand
(250,000) shares, and December 31, 1998, as to Two Hundred Fifty
Thousand (250,000) shares.
1.02 In the event Nor-Pac is successful in 1998 in establishing a
public trading market for MCM's common stock on NASDAQ's
over-the-counter electronic bulletin board ("OTCBB"), Nor-Pac
shall be entitled to a bonus payment of Five Hundred Thousand
(500,000) shares of MCM's authorized, but unissued, common
stock. Said shares to be issued to Nor-Pac within Five (5)
business days of the commencement of MCM's shares trading on the
OTCBB.
2. For the year ending December 31, 1999:
2.01 One Million (1,000,000) shares of MCM's authorized, but
unissued, common stock. Said shares to be issued quarterly as to
Two Hundred Fifty Thousand (250,000) per quarter, payable on
January 1, 1999, July 1, 1999, October 1, 1999, and December 1,
1999.
2.02 In the event Nor-Pac is successful in causing the MCM's shares
to be listed for trading listed on NASDAQ or an equivalent stock
exchange, Nor-Pac shall be entitled to a bonus payment of One
Million (1,000,000) shares of MCM's authorized, but unissued,
common stock. Said shares to be issued to Nor-Pac within Five
(5) business days of the commencement of trading such exchange.
3. Commencing on January 1, 2000, and thereafter:
3.01 Ten Thousand Dollars ($10,000) per month, payable by the 10th of
each calendar month.
Page 1 of Schedule A
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3.01.01 Both parties acknowledge and understand that the amount
of the monthly fee described in paragraph 3.01 above has
been determined by Nor-Pac and MCM on the basis of their
estimate of the amount of man hours per month which will
be devoted by Nor-Pac officers and representatives to
matters involving the affairs of MCM, and/or its
Affiliates, and in providing the services contemplated
in the Agreement. Quarterly, Nor-Pac and MCM shall
review the amount and scope of consulting, management
and advisory services performed by Nor-Pac on MCM's
behalf during the preceding quarter. If it shall be
determined by the parties that during such quarter a
materially greater or lesser amount of time shall have
been devoted by Nor-Pac's officers and employees to
matters involving the affairs of MCM, then, at the time
of such determination, Nor-Pac and MCM shall agree to an
equitable adjustment in the fees to be paid by MCM to
Nor-Pac in the next ensuing quarter.
3.02 Nor-Pac shall have the option of receiving any of the payments
described in paragraph 3.01 above in MCM's authorized, but
unissued, common stock. Said shares will be issued at Fifty
Percent (50%) of the then-current bid price of MCM's shares of
common stock if MCM's shares of common stock are being publicly
traded, or par value if MCM's shares of common stock are not
being publicly traded.
All parties acknowledge and agree that the MCM authorized, but unissued, shares
of common stock that is to be, or may be, issued pursuant to paragraphs 1.01,
1.02, 2.01, 2.02, and 3.02 above have not been registered under the Securities
Act of 1933, as amended, or the Securities and Exchange Act of 1934, as amended.
Accordingly, there may be restrictions of the transferability of said shares
including, but not limited to, Rule 144.
Page 2 of Schedule A
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FIRST AMENDMENT TO
AGREEMENT FOR MANAGEMENT AND CONSULTING SERVICES
This First Amendment To Agreement For Management and Consulting Services
(hereinafter the "First Amendment") is entered into this the 15th day of
February, 1999, by and between Metaline Contact Mines, a Washington corporation
(hereinafter "MCM") and Nor-Pac Limited Company, an Idaho limited liability
company (hereinafter "Nor-Pac").
Whereas, MCM and Nor-Pac entered into an Agreement For Management and
Consulting Services, dated June 1, 1998 (hereinafter the "Management
Agreement"); and
Whereas, MCM and Nor-Pac desire to amend the Management Agreement with
this First Amendment.
Now Therefore, in consideration of the mutual covenants and agreements
herein contained, the parties hereto agree as follows:
1. Article 4 of the Management Agreement shall be amended to read as
follows:
"4. FEES
4.01 As compensation for all consulting, management and
advisory services rendered hereunder by Nor-Pac, MCM
shall pay Nor-Pac according to Amended Schedule "A"
attached hereto."
In Witness Whereof, the parties hereto have executed this First
Amendment To Agreement For Management and Consulting Services as of the date
first above written.
Nor-Pac Limited Company Metaline Contact Mines
By: /s/ JOHN W. BEASLEY By: /s/ RICHARD L. HOWELL
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John W. Beasley Richard L. Howell
Secretary President
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AMENDED SCHEDULE "A" TO
AGREEMENT FOR MANAGEMENT AND CONSULTING SERVICES
Pursuant to Article 4 of the Agreement for Management and Consulting
Services, dated June 1, 1998, between Metaline Contact Mines ("MCM") and Nor-Pac
Limited Company ("Nor-Pac"), the compensation to be paid Nor-Pac shall be as
follows:
1. For the balance of the year ending December 31, 1998:
1.01 Five Hundred Thousand (500,000) shares of MCM's authorized, but
unissued, common stock. Said shares to be issued quarterly
commencing July 1, 1998, as to Two Hundred Fifty Thousand
(250,000) shares, and December 31, 1998, as to Two Hundred Fifty
Thousand (250,000) shares.
2. For the year ending December 31, 1999:
2.01 One Million (1,000,000) shares of MCM's authorized, but
unissued, common stock. Said shares to be issued quarterly as to
Two Hundred Fifty Thousand (250,000) per quarter, payable on
January 1, 1999; April 1, 1999, July 1,,1999, and October 1,
1999.
2.02 In the event Nor-Pac is successful in 1999 in establishing a
public trading market for MCM's common stock on NASDAQ's
over-the-counter electronic bulletin board ("OTCBB"), Nor-Pac
shall be entitled to a bonus payment of Five Hundred Thousand
(500,000) shares of MCM's authorized, but unissued, common
stock. Said shares to be issued to Nor-Pac within Five (5)
business days of the commencement of MCM's shares trading on the
OTCBB.
2.03 In addition to the bonus payment described in paragraph 2.02
above, in the event Nor-Pac is successful in causing the MCM's
shares to be upgraded and listed for trading listed on NASDAQ or
an equivalent stock exchange, Nor-Pac shall be entitled to an
additional bonus payment of One Million (1,000,000) shares of
MCM's authorized, but unissued, common stock. Said shares to be
issued to Nor-Pac within Five (5) business days of the
commencement of trading on NASDAQ or such other equivalent stock
exchange.
Page 1 of Amended Schedule A
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3. Commencing on January 1, 2000, and thereafter:
3.01 Ten Thousand Dollars ($10,000) per month, payable by the 10th of
each calendar month.
3.01.01 Both parties acknowledge and understand that the amount
of the monthly fee described in paragraph 3.01 above has
been determined by Nor-Pac and MCM on the basis of their
estimate of the amount of man hours per month which will
be devoted by Nor-Pac officers and representatives to
matters involving the affairs of MCM, and/or its
Affiliates, and in providing the services contemplated
in the Agreement. Quarterly, Nor-Pac and MCM shall
review the amount and scope of consulting, management
and advisory services performed by Nor-Pac on MCM's
behalf during the preceding quarter. If it shall be
determined by the parties that during such quarter a
materially greater or lesser amount of time shall have
been devoted by Nor-Pac' s officers and employees to
matters involving the affairs of MCM, then, at the time
of such determination, Nor-Pac and MCM shall agree to an
equitable adjustment in the fees to be paid by MCM to
Nor-Pac in the next ensuing quarter.
3.02 Nor-Pac shall have the option of receiving any of the payments
described in paragraph 3.01 above in MCM's authorized, but
unissued, common stock. Said shares will be issued at Fifty
Percent (50%) of the then-current bid price of MCM's shares of
common stock if MCM's shares of common stock are being publicly
traded, or par value if MCM'S shares of common stock are not
being publicly traded.
All parties acknowledge and agree that the MCM authorized, but unissued, shares
of common stock that is to be, or may be, issued pursuant to paragraphs 1.01,
1.02, 2.01, 2.02, and 3.02 above have not been registered under the Securities
Act of 1933, as amended, or the Securities and Exchange Act of 1934, as amended.
Accordingly, there may be restrictions of the transferability of said shares
including, but not limited to, Rule 144.
Page 2 of Amended Schedule A
