EXHIBIT 10.8
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FINDER'S FEE AGREEMENT
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Between:
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GRAVITY SPIN HOLDINGS, INC.
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And:
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TRUE NORTH MANAGEMENT LTD.
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Gravity Spin Holdings, Inc.
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2206 - 000 Xxxxxx Xxxxxx
Xxxxxxxxx, X.X., Xxxxxx, X0X 0X0
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FINDER'S FEE AGREEMENT
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THIS FINDER'S FEE AGREEMENT is made and dated for reference effective as
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at January 15, 2004 (the "Effective Date").
BETWEEN:
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GRAVITY SPIN HOLDINGS, INC., a company
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incorporated under the laws of the State of
Nevada, U.S.A., and having an executive office
and an address for notice and delivery located
at 0000 - 000 Xxxxxx Xxxxxx, Xxxxxxxxx, X.X.,
Xxxxxx, X0X 0X0
(the "Company");
OF THE FIRST PART
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AND:
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TRUE NORTH MANAGEMENT LTD., a company
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incorporated under the laws of Hong Kong and
having an address for notice and delivery
located at x/x 0xx Xxxxx Xxxxxx Xxxxxxxx, 0
Xxxxx'x Xxxx, Xxxxxxx, Xxxx Xxxx.
(the "Finder");
OF THE SECOND PART
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(the Company and the Finder being hereinafter
singularly also referred to as a "Party" and
collectively referred to as the "Parties" as
the context so requires).
WHEREAS:
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A. The Company is a body corporate subsisting under and registered pursuant
to the laws of the State of Nevada, U.S.A., and is a reporting company subject
to applicable securities laws in the United States and, in particular, however,
without limitation, the United States Securities Act of 1933, as amended (the
"Securities Act"), and the rules and regulations promulgated thereunder;
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B. The Finder has found certain mineral properties of merit in the People's
Republic of China and arranged for the initial introduction of certain directors
and officers of the Company to certain members of Brigade 209 of the Nuclear
Industry of Yunnan Province, People's Republic of China ("Brigade 209"),
resulting in the execution of two corresponding "Letters of Intent" (the
"Letters of Intent") between the Company and Brigade 209, both dated for
reference January 15, 2004, and pursuant to which, and subject to the
negotiation and formalization of two co-operative joint venture companies,
respecting the same, the Company and Brigade 209 therein expressed a mutual
intention to form two co-operative joint venture companies for the exploration
and development of certain gold and copper deposits. With respect to the first
co-operative joint venture company, the Company will contribute US$5,000,000 as
an equity investment, Brigade 209 will obtain the exploration and mining rights
for the gold and copper deposits in the 129.5 sq. km. area of the Jinlong
Mountain gold district (the "Property") and the co-operative joint venture
company will purchase the current exploration results of the Property. Upon
these conditions being fulfilled, the Company will own 90% and Brigade 209 will
own 10% of the co-operative joint venture company. With respect to the second
co-operative joint venture company, the Company will contribute US$5,000,000 as
an equity investment, Brigade 209 will obtain the exploration and mining rights
for the gold and copper deposits in the 200 sq. km. area of Zhamashi gold and
copper deposits in Qilian County of Qinghai Province and the co-operative joint
venture company will purchase the Zhamashi minerals processing mill and its
0.1364 sq. km. mining right. Upon these conditions being fulfilled, the Company
will own 90% and Brigade 209 will own 10% of the co-operative joint venture
company;
C. In accordance with the efforts of the Finder herein, and by the express
agreement and acknowledgement of the Company, the Company has agreed that the
Finder is entitled to a finders' fee (the "Finders' Fee") from the Company
equating to 200,000 restricted common shares in the capital of the Company
(collectively, the "Finder's Fee Shares") upon the execution of the Letters of
Intent between the Company and Brigade 209; and
D. The Parties hereto have agreed to enter into this agreement (the
"Agreement") which evidences the Company's agreement to provide the Finder with
the Finders' Fee upon the execution of the Letters of Intent between the Company
and Brigade 209, and upon the terms and conditions set forth hereinbelow;
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the
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mutual promises, covenants and agreements herein contained, THE PARTIES HERETO
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COVENANT AND AGREE WITH EACH OTHER as follows:
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Article 1
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FINDER'S FEE ENTITLEMENT
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1.1 Finder's Fee. In consideration of the Finder's assistance in helping the
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Company in connection with the execution of the Letters of Intent between the
Company and Brigade 209, the Company hereby agrees to issue to the Finder, or to
the Finder and/or such other designate(s) of the Finder as the Finder may
determine, in its sole and absolute discretion, and advise the Company of in
writing, in accordance with the provisions of the Securities Act, the Finder's
Fee Shares in connection with the execution of the Letters of Intent between the
Company and Brigade 209.
Article 2
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RESTRICTIONS ON THE ENTITLEMENT TO THE FINDER'S FEE
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2.1 Resale restrictions and legending of the Finder's Fee Share certificates.
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The Finder hereby acknowledges and agrees that the Company makes no
representations as to any resale or other restriction affecting the Finder's Fee
Shares and that it is presently contemplated that the Finder's Fee Shares will
be issued by the Company to the Finder in reliance upon the registration and
prospectus exemptions contained in certain sections of the "Regulation S"
promulgated under the Securities Act which will impose a trading restriction in
the United States on the Finder's Fee Shares for a period of at least 12 months
from the date of issuance. In addition, the Finder hereby also acknowledges and
agrees that the within obligation of the Company to issue the Finder's Fee
Shares pursuant to this section will be subject to the Company being satisfied
that an exemption from applicable registration and prospectus requirements is
available under the Securities Act and all applicable securities laws in respect
of the Finder and the Finder's Fee Shares, and the Company shall be relieved of
any obligation whatsoever to issue Finder's Fee Shares to the Finder where the
Company reasonably determines that a suitable exemption is not available to it.
The Finder hereby also acknowledges and understands that neither the sale
of the Finder's Fee Shares which the Finder is acquiring nor any of the Finder's
Fee Shares themselves have been registered under the Securities Act or any state
securities laws, and, furthermore, that the Finder's Fee Shares must be held
indefinitely unless subsequently registered under the Securities Act or an
exemption from such registration is available. The Finder also acknowledges and
understands that the certificate(s) representing the Finder's Fee Shares will be
stamped with the following legend (or substantially equivalent language)
restricting transfer in the following manner:
"The transfer of the securities represented by this certificate is
prohibited except in accordance with the provisions of Regulation S
promulgated under the United States Securities Act of 1933, as amended
(the "Securities Act"), pursuant to registration under the Act or
pursuant to an available exemption from registration. In addition,
hedging transactions involving such securities may not be conducted
unless in compliance with the Securities Act.".
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and the Finder hereby consents to the Company making a notation on its records
or giving instructions to any transfer agent of the Finder's Fee Shares in order
to implement the restrictions on transfer set forth and described hereinabove.
The Finder also acknowledges and understands that:
(a) the Finder's Fee Shares are restricted securities within the
meaning of "Rule 144" promulgated under the Securities Act;
(b) the exemption from registration under Rule 144 will not be
available in any event for at least one year from the date of
issuance of the Finder's Fee Shares to the Finder, and even then
will not be available unless (i) a public trading market then
exists for the common stock of the Company, (ii) adequate
information concerning the Company is then available to the public
and (iii) other terms and conditions of Rule 144 are complied
with; and
(c) any sale of the Finder's Fee Shares may be made by the Company
only in limited amounts in accordance with such terms and
conditions.
The Finder finally acknowledges and understands that, without in anyway
limiting the acknowledgements and understandings as set forth hereinabove, the
Finder agrees that the Finder shall in no event make any disposition of all or
any portion of the Finder's Fee Shares which the Finder is acquiring hereunder
unless and until:
(a) there is then in effect a "Registration Statement" under the
Securities Act covering such proposed disposition and such
disposition is made in accordance with said Registration
Statement; or
(b) (i) the Finder shall have notified the Company of the proposed
disposition and shall have furnished the Company with a detailed
statement of the circumstances surrounding the proposed
disposition, (ii) the Finder shall, at the sole and absolute
discretion of the Company, have furnished the Company with an
opinion of the Finder's own counsel to the effect that such
disposition will not require registration of any such Finder's Fee
Shares under the Securities Act and (iii) such opinion of the
Finder's counsel shall, at the sole and absolute discretion of the
Company, have been concurred in by counsel for the Company and the
Company shall have advised the Finder of such concurrence.
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Article 3
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COMPLIANCE WITH SECURITIES LAWS
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3.1 Compliance with securities laws. The Parties hereto shall each comply
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with all laws, whether federal, provincial or state, applicable to this
Agreement and to the issuance of any Finder's Fee Shares pursuant to the terms
of this Agreement. The Parties hereto also confirm their respective intentions
that the issuance of Finder's Fee Shares hereunder will be by way of a private
sale or sales and, to the extent that any federal, provincial or state
securities laws may be applicable, such sale or sales will be made pursuant to
the relevant exemptions under such securities laws including, without
limitation, the Securities Act.
Article 4
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FORCE MAJEURE
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4.1 Events. If either Party hereto is at any time either during this
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Agreement or thereafter prevented or delayed in complying with any provisions of
this Agreement by reason of strikes, walk-outs, labour shortages, power
shortages, fires, wars, acts of God, earthquakes, storms, floods, explosions,
accidents, protests or demonstrations by environmental lobbyists or native
rights groups, delays in transportation, breakdown of machinery, inability to
obtain necessary materials in the open market, unavailability of equipment,
governmental regulations restricting normal operations, shipping delays or any
other reason or reasons beyond the control of that Party, then the time limited
for the performance by that Party of its respective obligations hereunder shall
be extended by a period of time equal in length to the period of each such
prevention or delay.
4.2 Notice. A Party shall within seven calendar days give notice to the other
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Party of each event of force majeure under section "4.1" hereinabove, and upon
cessation of such event shall furnish the other Party with notice of that event
together with particulars of the number of days by which the obligations of that
Party hereunder have been extended by virtue of such event of force majeure and
all preceding events of force majeure.
Article 5
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ARBITRATION
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5.1 Matters for Arbitration. The Parties agree that all questions or matters
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in dispute with respect to this Agreement shall be submitted to arbitration
pursuant to the terms hereof.
5.2 Notice. It shall be a condition precedent to the right of any Party to
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submit any matter to arbitration pursuant to the provisions hereof, that any
Party intending to refer any matter to arbitration shall have given not less
than 10 calendar days' prior written notice of its intention to do so to the
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other Party together with particulars of the matter in dispute. On the
expiration of such 10 calendar days the Party who gave such notice may proceed
to refer the dispute to arbitration as provided in section "5.3" hereinbelow.
5.3 Appointments. The Party desiring arbitration shall appoint one
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arbitrator, and shall notify the other Party of such appointment, and the other
Party shall, within 15 calendar days after receiving such notice, appoint an
arbitrator, and the two arbitrators so named, before proceeding to act, shall,
within 30 calendar days of the appointment of the last appointed arbitrator,
unanimously agree on the appointment of a third arbitrator, to act with them and
be chairman of the arbitration herein provided for. If the other Party shall
fail to appoint an arbitrator within 15 calendar days after receiving notice of
the appointment of the first arbitrator, and if the two arbitrators appointed by
the Parties shall be unable to agree on the appointment of the chairman, the
chairman shall be appointed under the provisions of the Commercial Arbitration
Act (British Columbia) (the "Arbitration Act"). Except as specifically otherwise
provided in this section, the arbitration herein provided for shall be conducted
in accordance with such Arbitration Act. The chairman, or in the case where only
one arbitrator is appointed, the single arbitrator, shall fix a time and place
for the purpose of hearing the evidence and representations of the Parties, and
he shall preside over the arbitration and determine all questions of procedure
not provided for under such Arbitration Act or this section. After hearing any
evidence and representations that the Parties may submit, the single arbitrator,
or the arbitrators, as the case may be, shall make an award and reduce the same
to writing, and deliver one copy thereof to each of the Parties. The expense of
the arbitration shall be paid as specified in the award.
5.4 Award. The Parties agree that the award of a majority of the arbitrators,
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or in the case of a single arbitrator, of such arbitrator, shall be final and
binding upon each of them.
Article 6
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NOTICE
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6.1 Notice. Each notice, demand or other communication required or permitted
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to be given under this Agreement shall be in writing and shall be sent by
prepaid registered mail deposited in a Post Office addressed to the Party
entitled to receive the same, or delivered to such Party, at the address for
such Party specified above. The date of receipt of such notice, demand or other
communication shall be the date of delivery thereof if delivered, or, if given
by registered mail as aforesaid, shall be deemed conclusively to be the third
calendar day after the same shall have been so mailed, except in the case of
interruption of postal services for any reason whatsoever, in which case the
date of receipt shall be the date on which the notice, demand or other
communication is actually received by the addressee.
6.2 Change of address. Either Party may at any time and from time to time
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notify the other Parties in writing of a change of address and the new address
to which notice shall be given to it thereafter until further change.
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Article 7
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GENERAL PROVISIONS
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7.1 Entire agreement. This Agreement constitutes the entire agreement to date
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between the Parties hereto and supersedes every previous agreement,
communication, expectation, negotiation, representation or understanding,
whether oral or written, express or implied, statutory or otherwise, between the
Parties hereto with respect to the subject matter of this Agreement.
7.2 Enurement and assignment. This Agreement will enure to the benefit of and
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will be binding upon the Parties, their respective heirs, executors,
administrators and permitted assigns. This Agreement may not be assigned as to
any part by any Party without the permission in writing of the other Party, such
permission not to be unreasonably withheld.
7.3 Time of the essence. Time will be of the essence of this Agreement.
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7.4 Representation and costs. It is hereby acknowledged by each of the
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Parties hereto that, as between the Parties hereto, Xxxxxx Xxxxxx, Barristers
and Solicitors, acts solely for the Company, and that the Finder has been
advised by Xxxxxx Xxxxxx to obtain independent legal advice with respect to its
review and execution of this Agreement. In addition, it is hereby further
acknowledged and agreed by the Parties hereto that each Party to this Agreement
will bear and pay its own costs, legal and otherwise, in connection with its
respective preparation, review and execution of this Agreement, and, in
particular, that the costs involved in the preparation of this Agreement, and
all documentation necessarily involved thereto, by Xxxxxx Xxxxxx shall be at the
cost of the Company.
7.5 Applicable law. The situs of this Agreement is Vancouver, British
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Columbia, and for all purposes this Agreement will be governed exclusively by
and construed and enforced in accordance with the laws and Courts prevailing in
the Province of British Columbia.
7.6 Further assurances. The Parties hereto hereby, jointly and severally,
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covenant and agree to forthwith, upon request, execute and deliver, or cause to
be executed and delivered, such further and other deeds, documents, assurances
and instructions as may be required by the Parties hereto or their respective
counsel in order to carry out the true nature and intent of this Agreement.
7.7 Invalid provisions. If any provision of this Agreement is at any time
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unenforceable or invalid for any reason it will be severable from the remainder
of this Agreement and, in its application at that time, this Agreement will be
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construed as though such provision was not contained herein and the remainder
will continue in full force and effect and be construed as if this Agreement had
been executed without the invalid or unenforceable provision.
7.8 Severability and construction. Each Article, section, paragraph, term and
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provision of this Agreement, and any portion thereof, shall be considered
severable, and if, for any reason, any portion of this Agreement is determined
to be invalid, contrary to or in conflict with any applicable present or future
law, rule or regulation in a final unappealable ruling issued by any court,
agency or tribunal with valid jurisdiction in a proceeding to any of the Parties
hereto is a party, that ruling shall not impair the operation of, or have any
other effect upon, such other portions of this Agreement as may remain otherwise
intelligible (all of which shall remain binding on the Parties and continue to
be given full force and agreement as of the date upon which the ruling becomes
final).
7.9 Captions. The captions, section numbers, Article numbers and Schedule
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numbers appearing in this Agreement are inserted for convenience of reference
only and shall in no way define, limit, construe or describe the scope or intent
of this Agreement nor in any way affect this Agreement.
7.10 Counterparts. This Agreement may be signed by the Parties hereto in as
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many counterparts as may be necessary and, if required, by facsimile, each of
which so signed being deemed to be an original, and such counterparts together
shall constitute one and the same instrument and, notwithstanding the date of
execution, will be deemed to bear the Execution Date as set forth on the front
page of this Agreement.
7.11 No partnership or agency. The Parties hereto have not created a
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partnership and nothing contained in this Agreement shall in any manner
whatsoever constitute any Party the partner, agent or legal representative of
any other Party, nor create any fiduciary relationship between them for any
purpose whatsoever. No Party shall have any authority to act for, or to assume
any obligations or responsibility on behalf of, any other party except as may
be, from time to time, agreed upon in writing between the Parties or as
otherwise expressly provided.
7.12 Consents and waivers. No consent or waiver expressed or implied by either
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Party hereto in respect of any breach or default by any other Party in the
performance by such other of its obligations hereunder shall:
(a) be valid unless it is in writing and stated to be a consent or
waiver pursuant to this section;
(b) be relied upon as a consent to or waiver of any other breach or
default of the same or any other obligation;
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(c) constitute a general waiver under this Agreement; or
(d) eliminate or modify the need for a specific consent or waiver
pursuant to this section in any other or subsequent instance.
IN WITNESS WHEREOF each of the Parties hereto has hereunto set its
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respective hands and seals in the presence of its duly authorized signatories
effective as at the Effective Date as set forth on the front page of this
Agreement.
The CORPORATE SEAL of )
GRAVITY SPIN HOLDINGS, INC., )
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the Company herein, was hereunto affixed )
in the presence of: )
) (C/S)
/s/ Xxxxxx Xxxxxx )
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Authorized Signatory )
The CORPORATE SEAL of )
TRUE NORTH MANAGEMENT LTD., )
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the Finder herein, was hereunto affixed )
in the presence of: )
) (C/S)
/s/ Xxxxxxx Xxx )
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Authorized Signatory )
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