Corporate Development Services Agreement
THIS CORPORATE DEVELOPMENT SERVICES
AGREEMENT (the “Agreement”) is made
as of the date set forth on the signature page hereto, by and between CRG Finance AG, (“CRG”), and Ardent Mines Limited (the
“Company”).
WHEREAS, CRG, by and through
its officers, employees, agents, representatives and affiliates, has expertise
in the areas of international corporate management, financing, marketing and
sales consulting, strategic business planning, enhancing shareholder value,
investment structuring, asset acquisition and disposition, and other matters
relating to global corporate development; and
WHEREAS, the Company desires
to avail itself of the expertise of CRG in the aforesaid areas.
NOW, THEREFORE, in
consideration of the foregoing recitals and the covenants and conditions herein
set forth, which the parties expressly acknowledge and agree is adequate and
sufficient in all respects, the parties hereto agree as follows:
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1.
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Appointment.
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The Company hereby appoints CRG to
render the advisory and consulting services described herein for the term of
this Agreement.
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2.
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Services.
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(a) During
the term of this Agreement, CRG shall render to the Company, by and through such
of CRG’s officers, directors, employees, agents, representatives and affiliates
as CRG, in its sole discretion shall designate, consulting and other advisory
services (collectively, the “Advisory Services”)
in relation to developing strategic plans for inception of operations, corporate
management, the operations of the Company, strategic planning, domestic and
international marketing and sales, financial advice, including, without
limitation, advisory and consulting services in relation to the recommendations
of candidates for senior management positions of the Company and its
subsidiaries, prospective strategic alliance partners, preparing acquisition
growth plans, identifying prospective merger and acquisition candidates,
developing value propositions for the Company, analyzing financial implications
of potential transactions, advising on negotiations regarding terms and
conditions of transactions, outlining and managing due diligence issues and due
diligence processes, introductions to prospective customers, selection of
investment bankers or other financial advisors or consultants, and advice with
respect to the capital structure of the Company, equity participation plans,
employee benefit plans and other incentive arrangements for certain key
executives of the Company. All Advisory Services to be rendered
hereunder shall be made by CRG solely on a discretionary basis and solely within
the scope of its knowledge and abilities. Nothing herein shall be construed to
deem CRG to be acting as a fiduciary to the Company or its shareholders, or as
an officer or director of the Company, and nothing herein shall be deemed to
grant CRG any authority to act on behalf of the Company or to supersede the
authority of any and all of the officers and directors of the
Company. The officers and directors of the Company shall at all times
retain sole authority to accept or decline such advice offered by CRG and only
the officers and directors may bind the Company in respect of any advice given
by CRG.
(b) CRG
shall also render investment banking and finance consulting services to the
Company (collectively, the “Investment Banking
Services”). The scope of CRG Investment Banking Services shall
include services rendered only outside of the United States and only to non-U.S.
persons. The Investment Banking Services shall include, without
limitation, (i) any and all investment banking, financial advisory or any other
services rendered by CRG to the Company in connection with any and all public or
private financing of the Company, introductions or facilitation of placement of
debt or equity interests of the Company, of any and all nature or kind, and all
mergers, acquisitions and divestitures by the Company or any of its
subsidiaries, (ii) the acquisition or disposition of assets of the Company, by
merger, consolidation, amalgamation or otherwise, involving stock or assets,
and/or the acquisition or disposition of any subsidiary or division of the
Company, and/or (iii) any and all financing or transactions involving
assets or liabilities of the Company. All Advisory Services and
Investment Banking Services are collectively referred to herein as the “Services.”
(c) The
Company agrees to undertake any and all of its own due diligence with respect to
any and all recommendations made by CRG. No reliance shall be made
upon CRG as having satisfied separate and independent due diligence obligations
of the Company with respect to any and all transactional matters involving the
Company.
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3.
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Fees.
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(a) In
consideration of the rendering of the Advisory Services contemplated by
Section 2(a) hereof, the Company agrees to pay to CRG (i) an inception fee
of US$100,000.00 (one hundred thousand U.S. dollars) (the “Inception Payment”)
and (ii) a monthly services fee of US$25,000.00 (twenty five thousand U.S.
dollars) per month, payable each month for the period commencing as of September
1, 2010 and continuing until the third anniversary thereof (the “Advisory Services
Fee”). All Advisory Services Fee payments shall be made
quarterly in advance on the first business day of each calendar
quarter. The Advisory Services Fee and all other payments hereunder
shall be delivered in such currency as requested by CRG. The Advisory
Services Fee are nonrefundable. CRG shall be paid $10,000 per month
of the Advisory Services Fee beginning September 1, 2010, with the balance of
$15,000 per month of the Advisory Services Fees together with the Inception
Payment accruing until completion of the first Company financing following the
date of this Agreement when such accruals shall be fully due and
payable.
(b) In
consideration of any and all Investment Banking Services provided to the Company
in connection with the events described in the definition of Investment Banking
Services, CRG shall receive in cash ten percent (10%) of the total value of each
such transaction, payable at closing of each such transaction.
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4.
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Out-of-Pocket
Expenses
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In addition to the compensation payable
to CRG pursuant to Section 3 hereof, the Company shall, at the request of
CRG, upon presentation of reasonable receipts and documentation evidencing
Out-of-Pocket Expenses, pay directly, or reimburse CRG for, its reasonable
Out-of-Pocket Expenses. For the purposes of this Agreement, the term “Out-of-Pocket
Expenses” shall mean the amounts actually paid by CRG in cash in
connection with its performance of the Services, including, without limitation,
reasonable (i) fees and disbursements of any independent auditors, outside
legal counsel, consultants, third-party investment bankers, financial advisors
and other independent professionals, organizations and consultants;
(ii) costs of any outside services or independent contractors such as
financial printers, couriers, business publications or similar services and
(iii) transportation, per diem, telephone calls, word processing expenses
or any similar expense not associated with its ordinary operations. All
reimbursements for Out-of-Pocket Expenses shall be made promptly upon or as soon
as practicable after presentation by CRG to the Company of the statement in
connection therewith. Any and all Out-of-Pocket Expenses in excess of
$10,000 per month shall require pre-approval in writing of a duly authorized
officer of the Company.
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5.
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Indemnification
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The Company will indemnify and hold
harmless CRG and its officers, directors, employees, agents, shareholders,
attorneys, accountants, representatives and their respective affiliates (each
being an “Indemnified
Party”) from and against any and all losses, costs, expenses, claims,
damages and liabilities (the “Liabilities”) to
which such Indemnified Party may become subject under any applicable law, or any
claim made by any third party, or otherwise, to the extent they relate to or
arise out of the performance of the Services contemplated by this Agreement or
the engagement of CRG pursuant to, and the performance by CRG of the Services
contemplated by, this Agreement. The Company will reimburse any Indemnified
Party for all reasonable costs and expenses (including reasonable attorneys’
fees and expenses) as they are incurred in connection with the investigation of,
preparation for or defense of any pending or threatened claim for which the
Indemnified Party would be entitled to indemnification under the terms of the
previous sentence, or any action or proceeding arising therefrom, whether or not
such Indemnified Party is a party hereto, provided that, subject to the
following sentence, the Company shall be entitled to assume the defense thereof
at its own expense, with counsel satisfactory to such Indemnified Party in its
reasonable judgment. Any Indemnified Party may, at its own expense, retain
separate counsel to participate in such defense, and in any action, claim or
proceeding in which the Company, on the one hand, and an Indemnified Party, on
the other hand, is, or is reasonably likely to become, a party, such Indemnified
Party shall have the right to employ separate counsel at the Company’s expense
and to control its own defense of such action, claim or proceeding if, in the
reasonable opinion of counsel to such Indemnified Party, a conflict or potential
conflict exists between the Company, on the one hand, and such Indemnified
Party, on the other hand, that would make such separate representation
advisable. The Company agrees that it will not, without the prior written
consent of the applicable Indemnified Party, settle, compromise or consent to
the entry of any judgment in any pending or threatened claim, action or
proceeding relating to the matters contemplated hereby (if any Indemnified Party
is a party thereto or has been actually threatened to be made a party thereto)
unless such settlement, compromise or consent includes an unconditional release
of the applicable Indemnified Party and each other Indemnified Party from all
liability arising or that may arise out of such claim, action or proceeding.
Provided that the Company is not in breach of its indemnification obligations
hereunder, no Indemnified Party shall settle or compromise any claim subject to
indemnification hereunder without the consent of the Company. The Company will
not be liable under the foregoing indemnification provision to the extent that
any loss, claim, damage, liability, cost or expense is determined by a court, in
a final judgment from which no further appeal may be taken, to have resulted
solely from the gross negligence or willful misconduct of CRG. If an Indemnified
Party is reimbursed hereunder for any expenses, such reimbursement of expenses
shall be refunded to the extent it is finally judicially determined that the
Liabilities in question resulted solely from the gross negligence or willful
misconduct of CRG.
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6.
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Term
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This Agreement shall be in effect on
the date hereof and shall continue until the third anniversary of the date
hereof (the “Initial Term”). This Agreement shall automatically renew
on each anniversary thereafter and continue and remain in effect for additional
one year periods (each a “Renewal Term”) unless either party gives not less than
ninety (90) days’ advance written notice. This Agreement may be
terminated at any time upon mutual consent of the parties. This
Agreement may be terminated by the Company upon determination of (i) any act of
fraud or dishonesty, willful misconduct or gross negligence by CRG in connection
with its obligations under this Agreement (ii) breach of any contractual duty of
CRG to the Company under this Agreement. This Agreement may be
terminated by CRG in the event of any non-performance of the duties and
obligations of the Company. This Agreement may be terminated at any
time for any reason by CRG upon not less than thirty (30) days’ advance written
notice to the Company. Any and all provisions of this Agreement
pertaining to any and all outstanding unpaid compensation due and payable to CRG
shall survive termination of this Agreement and the provisions of
Sections 5, 7 and 8 and otherwise as the context so requires shall survive
the termination of this Agreement.
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7.
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Other
Activities
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Nothing herein shall in any way
preclude CRG or its officers, directors, employees, agents, shareholders,
attorneys, accountants, representatives and their respective affiliates from
engaging in any and all other business activities or from performing services
for its or their own respective account or for the account of others, including
for companies that may do business with the Company or have interests which are
substantially similar to the business conducted by the Company. Where
CRG has an ownership interest in any companies or organizations with whom the
Company directly engages in business relationships (“Interested Transactions”)
CRG undertakes to disclose such relationships in writing to the corporate
governance officer of the Company or another duly authorized officer of the
Company. Nothing herein shall be construed as an undertaking of
unique or exclusive services of CRG solely on behalf of the
Company. The Company expressly waives any and all actual or potential
conflicts with respect to CRG’s past, present or future relationships of any
nature or kind with any and all Company officers, directors, shareholders,
agents, accountants, counsel or third parties and their respective affiliates
with whom CRG has, or has had, dealings or business relationships of any nature
or kind.
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8.
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General.
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(a) No
amendment or waiver of any provision of this Agreement, or consent to any
departure by either party from any such provision, shall be effective unless the
same shall be in writing and signed by the parties to this Agreement, and, in
any case, such amendment, waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
(b) This
Agreement and the rights of the parties hereunder may not be assigned without
the prior written consent of the parties hereto; provided, however, that CRG may
assign or transfer its duties or interests hereunder to a CRG affiliate at the
sole discretion of CRG. Subject to the foregoing, this Agreement
shall inure to the benefit of, and be binding upon, CRG and the Company
(including any and all present and future subsidiaries of the Company that are
not signatories hereto) and their respective successors and
assigns.
(c) Any
and all notices hereunder shall, in the absence of receipted hand delivery, be
deemed duly given upon confirmation of receipt or refusal of delivery, if the
same shall be sent by registered or certified mail, return receipt requested, or
by internationally recognized courier and the mailing date shall be deemed the
date from which all time periods pertaining to a date of notice shall run.
Notices shall be addressed to the parties at the registered address of record
and may be changed upon Notice as provided herein to the other party regarding
such change of address.
(d) This
Agreement shall constitute the entire agreement between the parties with respect
to the subject matter hereof, and shall supersede all previous oral and written
(and all contemporaneous oral) negotiations, commitments, agreements and
understandings relating hereto.
(e) All
controversies arising out of or in connection with this Agreement shall be
finally settled pursuant to binding arbitration under the Rules of Arbitration
of the Chamber of Commerce of Zurich by a single arbitrator appointed and
conducted in accordance with the Swiss Rules of International Arbitration. The
place of arbitration shall be Zurich, Switzerland. The arbitration
shall be conducted in the English language. The prevailing party in
any such arbitration shall be awarded reimbursement of any and all fees, costs,
expenses and disbursements incurred with respect to such arbitration and/or the
enforcement of this Agreement. The award of any such arbitration may
be entered by any court of competent jurisdiction. In the event of
any doubt regarding the enforceability of the arbitration provisions herein,
this Agreement shall be governed by, and enforced in accordance with, the laws
of the state of incorporation of the Company (excluding the choice of law
principles thereof). The parties expressly agree that the place and
manner of such arbitration is reasonable and neither party shall raise any
defense of forum non
conveniens or lack of binding jurisdiction of such arbitral
forum.
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(f)
All information provided by the Company to be relied
upon by CRG will be, when and as delivered to CRG, and on the closing date of
all transactions, complete and correct in all material respects and will not
knowingly contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
contained therein, in light of the circumstances under which they were made, not
misleading. The Company shall advise CRG immediately of the
occurrence of any event or circumstance that results in any Company document
containing untrue statement of a material fact or omitting to state a material
fact required to be stated therein or necessary to make the statements contained
therein, in light of the circumstances under which they were made, not
misleading, and shall furnish to CRG copies of amended or supplemented documents
that correct such statement or omission in such quantities as CRG may from time
to time reasonably request. All financial or other projections of the Company
will be prepared in good faith on the basis of reasonable assumptions. The
Company acknowledges that CRG (i) will be using and relying on all Company
information without independently verification of the same, (ii) does not assume
responsibility for the accuracy or completeness of such information; (iii) will
not make any appraisal of any assets of the Company or (iv) will not render any
fairness opinions. Except as otherwise provided herein, nothing
herein shall require CRG to deliver to the Company any reports, memoranda or
other documentation of any nature or kind except as determined by
CRG.
(g) The
Company has full corporate power and authority to execute and deliver this
Agreement on behalf of itself and its affiliates and to perform its obligations
hereunder, and all consents, authorizations, approvals and orders required in
connection with the execution, delivery and performance hereof have been
obtained. This Company represents and warrants to the CRG that the Agreement is
a valid and binding obligation of the Company, enforceable in accordance with
its terms and that the execution, delivery and performance of this Agreement by
the Company and the CRG will not conflict with, result in a breach of any of the
terms or provisions of or constitute a violation or a default under any laws,
rules or regulations applicable to the Company and the CRG pertaining to the
subject matter herein or under any material agreement or instrument to which the
Company is a party or by which the Company is bound. Nothing herein shall be
construed as an undertaking of unique or exclusive services of the CRG solely on
behalf of the Company. The Company agrees to undertake any and all of
its own due diligence with respect to any and all prospective Investors and
proposed corporate development activities. The Company expressly
waives any and all actual or potential conflicts with respect to the Primes
past, present or future relationships of any nature or kind with any Investors
or their respective affiliates.
(h) CRG
shall be entitled to fully rely upon all documents and materials provided by the
Company as true and correct in all respects and the Company shall indemnify and
hold harmless CRG and its officers, directors, employees and agents for any and
all losses incurred by CRG as a result of any material misstatement or omission
in such marketing materials, which losses shall include, without limitation, all
fees, costs, expenses and disbursements of counsel defending CRG against claims
for such losses as well as enforcement of this Agreement. The
officers and directors of the Company shall independently review and confirm the
validity of all facts in all materials prepared by CRG.
(i)
No advice rendered by CRG pursuant to this
Agreement may be disclosed publicly in any manner without CRG’s prior written
approval, except as may be required by law, regulation or court order but
subject to the limitation below. If the Company is required or
reasonably expects to be required to disclose any advice, the Company shall
provide CRG with prompt notice thereof so that CRG may seek a protective order
or other appropriate remedy and take reasonable efforts to assure that all of
such advice disclosed will be covered by such order or other
remedy. Whether or not such a protective order or other remedy is
obtained, the Company will and will cause its affiliates to disclose only that
portion of such advice that the Company is so required to
disclose.
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(j)
The Company shall not directly or indirectly or through any third party take any
action to circumvent this Agreement or the rights of CRG set forth
herein. The Company undertakes and promises that it will not
circumvent the CRG by dealing directly with any prospective counterparties
introduced by the CRG to the Company, unless authorized by the CRG in writing to
deal directly with them.
(k) If
any provision(s) of this Agreement or the application thereof to any person or
circumstance shall be invalid or unenforceable to any extent, the remainder of
this Agreement and the application of such provisions to other persons or
circumstances shall not be affected thereby and shall be enforced to the fullest
extent permitted by law.
(l)
Numbered and titled article and section headings and defined
terms are for convenience only and shall not be construed as amplifying or
limiting any of the provisions of this Agreement. This Agreement has
been fully negotiated and jointly drafted by the parties and nothing herein
shall be construed against either party as the draftsperson
thereof.
(m)
The waiver by any party of any breach of this Agreement
shall not operate as or be construed to be a waiver by such party of any
subsequent breach.
(n) This
Agreement may be executed by the parties to this Agreement in separate
counterparts, each of which when so executed shall be deemed to be an original
and both of which taken together shall constitute one and the same instrument
and Agreement. This Agreement may be executed and delivered via
facsimile or any other means of electronic delivery which shall be fully binding
upon the parties to the same and full extent as the original exemplar
thereof.
[Signature
Page Follows]
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IN WITNESS WHEREOF, the parties have
caused this Agreement to be executed and delivered as of this 27th day of
September, 2010 by their duly authorized officers or agents as set forth
below.
CRG
Finance AG
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By:
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/s/
Xxxxxx Xxxxxxxxx
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Name:
Xxxxxx Xxxxxxxxx
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Title: CEO
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Ardent
Mines Limited:
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By:
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/s/
Xxxxxxxx Xxxxx
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Name:
Xxxxxxxx Xxxxx
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Title:
President and Chief Executive Officer
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