CONSULTING AGREEMENT
Exhibit
10.5
This
consulting agreement is entered into as of April 13, 2007 (the “Effective
Date”),
by
and between Boston Financial Partners, Inc. (“Consultant”),
and
Wits Basin Precious Minerals Inc., a Minnesota corporation (the “Company”).
WHEREAS,
the Company and Consultant wish to enter into an agreement whereby Consultant
will provide the Company strategic merger, acquisition and corporate advice
on a
consulting basis.
NOW,
THEREFORE, for good and valuable consideration, the receipt of which is hereby
acknowledged, the parties agree as follows:
1. Consulting
Services.
During
the term of this agreement, Consultant shall from time to time perform
consulting services to provide the Company strategic merger, acquisition and
corporate advice, as well as other consulting services which may in the future
be mutually agreed upon by the Company and Consultant. The Company and
Consultant hereby acknowledge and agree that: (i) Consultant is not a “broker”
or “dealer” as defined under any applicable federal and/or state securities
laws; (ii) Consultant shall not engage in any acts for which it is required
to
be a broker-dealer; (iii) Consultant may introduce potential investors to the
Company, but shall not engage in any sales efforts in connection with any
investment by any person or entity in the Company; (iv) Consultant shall not
participate in any negotiation of the terms of any such investment; and (v)
Consultant shall not give any advice to anyone regarding the valuation of,
potential return on, or the terms of any investment in, any securities of the
Company, except as authorized by the Company.
2. Compensation.
In
consideration of the services to be rendered by Consultant hereunder, the
Company shall pay Consultant $100,000 in the aggregate payable as the services
are invoiced by the Consultant to the Company (the “Consulting
Fee”).
The
Company and Consultant shall mutually agree on the portion of the Consulting
Fee
due under each respective invoice provided by Consultant to the Company. The
Company shall pay Consultant on or before the thirtieth day following the
Company’s receipt of Consultant’s invoice that has been mutually agreed upon by
the Company and Consultant. Consultant shall be responsible for any and all
expenses incurred and paid by Consultant in connection with providing the
consulting services to the Company hereunder.
3. Term;
Termination.
Unless
terminated earlier by either party for any reason, or no reason, with ten (10)
days’ prior written notice to the other party, the term of this Agreement shall
be for a period of six months from the Effective Date.
4. Confidentiality
Obligations.
As a
condition to Consultant’s continuing relationship with the Company as a
consultant, Consultant understands and agrees as follows:
(a) Consultant
hereby acknowledges that he may have received, or may receive in the future,
certain confidential or non-public information from the Company concerning
the
Company (collectively, the “Confidential
Information”).
Confidential Information also includes all reports, analyses, notes or other
information that are based on, contain or reflect any evaluation material.
(b) Consultant
shall use the Confidential Information solely for the purpose of performing
the
services required to be performed by Consultant hereunder. Consultant, and
any
representatives and agents of Consultant, shall keep all Confidential
Information confidential by Consultant, and shall not disclose any Confidential
Information without the prior written consent of the Company; provided, however,
that any of such information may be disclosed to Consultant’s representatives or
agents who need to know such information for the purpose of performing such
services required to be performed hereunder (it being understood that Consultant
shall inform such representatives and agents of the confidential nature of
the
Confidential Information and shall direct such representatives and agents to
treat such information confidentially). Consultant shall be responsible for
any
breach of this agreement by his representatives or agents.
(c) Following
the completion of his engagement by the Company, Consultant and any
representatives or agents of Consultant shall promptly return any Confidential
Information in their respective possessions to the Company, without retaining
any copy thereof, and destroy all analyses, compilations, studies or other
documents prepared by or for internal use which reflect, contain or embody
Confidential Information.
(d) Consultant
acknowledges and agrees that a violation of the terms of this agreement would
cause irreparable harm to the Company, and that the Company’s remedy at law for
any such violation would be inadequate. In recognition of the foregoing,
Consultant agrees that, in addition to any other relief afforded by law,
including damages sustained by a breach of this agreement and without any
necessity of proof of actual damage, the Company shall have the right to enforce
this agreement by specific remedies, which shall include, among other things,
temporary and permanent injunctions, it being the understanding of Consultant
and the Company that both damages and injunctions shall be proper modes of
relief and are not to be considered as alternative remedies.
(e) For
the
purposes of this agreement, the definition of “Confidential Information” shall
not include information which (A) had been made previously available to the
public by the Company; (B) is or becomes generally available to the public,
unless the information being made available to the public results in a breach
of
this Agreement; (C) prior to disclosure to Consultant or Consultant’s
representatives or agents, was already rightfully in any such person’s
possession without any requirement of confidentiality or (D) is obtained by
Consultant or Consultant’s representatives or agents from a third party who is
lawfully in possession of such information, and not in violation of any
contractual, legal or fiduciary obligation to the Company, with respect to
such
information and who does not require Consultant to refrain from disclosing
such
information to others.
(f) Consultant
acknowledges and agrees that the obligations under this Section 4 shall survive
indefinitely, notwithstanding the termination of this agreement.
5. Status
of Consultant as Independent Contractor.
(a) Using
his
best efforts, Consultant shall devote such time to the performance of the
services described in this agreement as may be necessary to satisfactorily
complete the such services.
(b) Consultant
shall be an independent contractor in the performance of this agreement, and
shall not be deemed an employee of the Company for any purpose whatsoever.
Neither Consultant nor any employees of Consultant shall participate in any
benefit programs for the Company employees, including without limitation health
benefits, life insurance, pension or profit sharing plans and paid vacation
and
sick leave. Consultant shall be solely responsible for the payment of his income
taxes as required by any and all government agencies with respect to
compensation paid to Consultant by the Company, and shall comply with all
regulations therefrom.
(c) Consultant
shall have no power to act as an agent of the Company or bind the Company in
any
respect.
6. Miscellaneous.
(a) Entire
Agreement.
This
agreement sets forth the entire agreement of the parties with respect to the
subject matter hereof, and supersedes all prior agreements. This agreement
may
not be amended or modified in any manner except by an instrument in writing
signed by the parties.
(b) Severability.
The
invalidity or unenforceability of one or more provisions of this agreement
shall
not affect the validity or enforceability of any of the other provisions, and
this agreement shall be construed as if such invalid or unenforceable provisions
were omitted. If any provision is unenforceable because it is overbroad, the
parties agree that such provision shall be limited to the extent necessary
to
make it enforceable, it being the intent of the parties that provisions of
this
agreement be enforced to the maximum extent possible.
(c) Construction.
This
agreement shall be deemed to have been entered into in, and shall be construed
and enforced in accordance with the laws of, the State of
Minnesota.
(d) Waivers.
The
failure of any party to insist, in any one or more instances, upon the
performance of any of the terms or conditions of this agreement or to exercise
any right, shall not be construed as a waiver of the future performance of
any
such term or condition or the future exercise of such right.
(e) Notices.
Any
notice to be given shall be sufficiently given when received, and, if mailed,
shall be deemed received three (3) business days after the date of mailing
if
sent by certified mail, postage prepaid, to the address of the party set forth
below (or to such other address as the party shall designate by written
notice).
|
If
to the Company, to:
|
000
XXX Xxxxxx
00
Xxxxx 0xx
Xxxxxx
Xxxxxxxxxxx,
XX 00000-0000
Attention:
Chief Financial Officer
|
|
If
to Consultant, to:
|
Boston
Financial Partners, Inc.
0
Xxxxx Xxxxxx Xxxxx, 0xx
Xxxxx
Xxxxxxx,
XX 00000
Attention:
Xxxxxx Brazil
|
(f) Assignment.
Consultant may not assign or subcontract his rights or obligations under this
agreement without the prior written consent of the Company. The Company may
assign its rights to any affiliated entity.
IN
WITNESS WHEREOF, the undersigned have signed this Consulting Agreement as of
the
Effective Date.
|
CONSULTANT:
|
|||
| By /s/ Xxxx X. Xxxxx |
By
|
/s/ Xxxxxx Brazil | |
|
Xxxx Xxxxx, Chief Financial Officer |
Xxxxxx Brazil, Boston Financial Partners, Inc. |
||
Consulting
Agreement - Signature Page
