Exhibit 10-1
CONTRACT FOR INVESTMENT BANKING SERVICES
THIS CONTRACT FOR INVESTMENT BANKING SERVICES AGREEMENT ("Agreement") is made
and entered into on this 15th day of January, 2004, by and between Golden Spirit
Minerals Ltd., a Delaware Corporation ("Client") and J & S Overseas Holdings
Ltd., a Cayman Islands Corporation ("Contractor").
RECITALS
A. Client is in the business of finding, exploring and developing mineral
properties of merit, with emphasis on gold mining properties.
B. Client and Contractor desire to enter into a relationship whereby
Contractor will provide access to investors and funding for the exploration and
development of these properties.
ARTICLE I
TERM OF CONTRACT
1.1 Term of Contract. The term of this Agreement shall be two (2) years
from the date set forth above, unless terminated earlier.
ARTICLE II
SERVICES TO BE PERFORMED BY CONTRACTOR
2.1. Specific Services. Contractor agrees to use his or her best efforts to
provide essential information and solicit contacts with individuals and/or
companies interested in providing financial services to the Client.
2.2. Methods of Performing Services. Contractor shall determine the method,
details, and means of performing the services described in Section 2.1 of this
Agreement.
2.3 Status of Contractor. Contractor is not an employee of Client for any
purpose whatsoever, but is an independent contractor. Client is interested only
in the results obtained by Contractor, who shall have the sole control of the
manner and means of performing under this Agreement. Client shall not have the
right to require Contractor to do anything, which would jeopardize the
relationship of independent contractor between Contractor and Client. All
expenses and disbursements, including, but not limited to, those for travel and
maintenance, entertainment, office, clerical, and general expenses, that may be
incurred by Contractor in connection with this Agreement shall be borne wholly
and completely by Contractor, and Client shall not be responsible or liable
therefore. Contractor does not have, nor shall it hold itself out as having,
any right, power or authority to create any contract or obligation, either
express or implied, on behalf of, in the name of, or obligating Client, or to
pledge Client's credit, or to extend credit in Client's name unless Client shall
consent thereto in advance in writing. Client shall have the right to appoint
or otherwise designate suitable representatives (herein collectively referred to
as "Contractor's Representatives"). Contractor shall be solely responsible for
Contractor's representatives and their acts. Contractor's Representatives shall
be at Contractor's own risk, expense, and supervision, and Contractor's
Representatives shall not have any claim against Client for salaries,
commissions, items of cost, or other form of compensation or reimbursement, and
Contractor represents, warrants, and covenants that Contractor's Representatives
shall be subordinate to Contractor and subject to each and all of the terms,
provisions and conditions applying to Contractor hereunder. Contractor agrees he
or she is not entitled to the rights or benefits afforded to Client's employees,
including disability or unemployment insurance, workers' compensation, medical
insurance, sick leave, or any other employment benefit. Contractor is
responsible for providing; at his or her own expense, disability, unemployment,
and other insurance, workers' compensation, training, permits and licenses for
himself or herself and for his or her employees and subcontractors.
2.4 Payment of Income Taxes. Contractor is responsible for paying when due
all income taxes, including estimated taxes, incurred as a result of the
compensation paid by Client to Contractor for services under this Agreement. On
request, Contractor will provide Client with proof of timely payment.
Contractor agrees to indemnify Client for any claims, costs, losses, fees,
penalties, interest, or damages suffered by Client resulting from Contractor's
failure to comply with this provision.
2.5 Use of Employees or Subcontractors. Contractor may, at Contractor's own
expense, use any employees or subcontractors as Contractor deems necessary to
perform the services required of Contractor by this Agreement. Client may not
control, direct or supervise Contractor's employees or subcontractors in the
performance of those services.
ARTICLE III
COMPENSATION
3.1 Compensation. One Million (1,000,000) shares of the Client's US
$0.0001 par value common stock with Rule 144 restrictions.
3.2 Payment of Expenses. Contractor will be responsible for all expenses
incurred in performing services under this Agreement.
ARTICLE IV
OBLIGATIONS OF CONTRACTOR
4.1 Minimum Amount of Service. Contractor agrees to devote a minimum of one
hundred (100) hours per month to performing the above-described services.
4.2 Non-Exclusive Relationship. Contractor may represent, perform services
for, and contract with as many additional clients, persons, or companies as
Contractor, in his or her sole discretion, sees fit.
4.3 Time and Place of Performing Work. Contractor may perform the services
under this agreement at any suitable time and location he or she chooses.
4.4 Web Site Information. Client will supply to Contractor, without cost,
from time to time, reasonable quantities of information and literature on the
Web Site and related activities, which Agent, in its sole discretion, determines
would be helpful to Contractor to perform the services under this Agreement.
4.5 Workers' Compensation. Contractor agrees to provide workers'
compensation insurance for Contractor's employees and agents and agrees to hold
harmless and indemnify Client for any and all claims arising out of any injury,
disability or death of any Contractor's employees or agents.
4.6 Contractor's Qualifications. Contractor represents that he or she has
the qualifications and skills necessary to perform the services under this
Agreement in a competent, professional manner, without the advice or direction
of Client. This means Contractor is able to fulfill the requirements of this
Agreement. Failure to perform all the services required under this Agreement
constitutes a material breach of the Agreement. Contractor has complete and
sole discretion for the manner in which the work under this Agreement will be
performed.
ARTICLE V
OBLIGATIONS OF CLIENT
5.1 Cooperation of Client. Client agrees to comply with all reasonable
requests of Contractor and provide access to all documents reasonably necessary
to the performance of Contractor's duties under this Agreement.
5.2 Place of Work. Contractor agrees that Client is not responsible for
furnishing space on Client's premises for use by Contractor while performing the
services under this Agreement.
ARTICLE VI
TERMINATION OF AGREEMENT
6.1 Expiration of Agreement. Unless otherwise terminated as provided in
this Agreement, this Agreement will continue in effect for a period of two years
and shall then terminate unless renewed in writing by both parties.
6.2 Termination on Notice. Notwithstanding any other provision of this
Agreement, either party may terminate this Agreement at any time by giving
thirty (30) days written notice to the other party. Unless otherwise terminated
as provided in this Agreement, this Agreement will continue in force for a
period of two years.
6.3 Termination on Occurrence of Stated Events. This Agreement will
terminate automatically on the occurrence of any of the following
events: (a) Bankruptcy or insolvency of either party;
(b) Sale of the business of either party;
(c) Death of Contractor; and/or
(d) Assignment of this Agreement by either party without the consent
of the other party.
6.4 Termination for Default. If either party defaults in the performance of
this Agreement or materially breaches any of its provisions, the non-breaching
party may terminate this Agreement by giving at least thirty (30) days written
notification to the breaching party. Termination will take effect immediately
on receipt of notice by the breaching party or five (5) days after mailing
notice, whichever occurs first. For the purposes of this Section 6.4, material
breach of this Agreement includes, but is not limited to, the following:
(a) Client's failure to pay Contractor any compensation due within
forty-five (45) days after written demand for payment.
(b) Contractor's failure to complete the services specified in
Section 2.1 of this Agreement.
(c) Contractor's material breach of any warranty, representation or
agreement contained in this Agreement.
ARTICLE VII
NON-DISCLOSURE OF PROPRIETARY INFORMATION; NON-COMPETITION AND NON-CIRCUMVENTION
7.1 New Developments. Contractor agrees that all designs, plans, reports,
specifications, drawings, inventions, processes, and other information or items
produced by Contractor while performing services under this Agreement will be
assigned to Client as the sole and exclusive property of Client and Client's
assigns, nominees and successors, as will any copyrights, patents or trademarks
obtained by Contractor while performing services under this Agreement. On
request and at Client's expense, Contractor agrees to help Client obtain patents
and copyrights for any new developments. This includes providing data, plans,
specifications, descriptions, documentation , and other information, as well as
assisting Client in completing any required application or registration.
7.2 Non-Disclosure of Proprietary and Confidential Information By
Contractor. In consideration and recognition of the fact that during the term
of this Agreement, Contractor may have access to Proprietary Information (as
used in this Article VII "Proprietary Information" shall mean and include,
without limitation, any and all marketing and sales data, plans and strategies,
financial projections, Client lists, prospective Client lists, promotional
ideas, data concerning Client's services, designs, methods, inventions,
improvements, discoveries, designs whether or not patentable, "know-how",
training and sales techniques, and any other information of a similar nature
disclosed to Contractor or otherwise made known to Contractor as a consequence
of or through this Agreement during the term hereof. The term Proprietary
Information shall not include any information that (i) at the time of the
disclosure or thereafter is or becomes generally available to and known by the
public, other than as a result of a disclosure by Contractor or any agent or
representative of Contractor in violation of this Agreement, or (ii) was
available to Contractor on a non?confidential basis from a source other than
Client, or any of Client's officers, directors, employees, agents or other
representatives) or other information and data of a secret and proprietary
nature which Client desires to keep confidential, and that Client has furnished,
or during the term will furnish such information to Contractor, Contractor
agrees and acknowledges (as used in this Article VII, Contractor shall mean and
include, Contractor and any subsidiaries, affiliates, related entities,
officers, agents, shareholders, partners, principals and/or employees) that
Client has exclusive proprietary rights to all Proprietary Information, and
Contractor hereby assigns to Client all rights that he or she might otherwise
possess in any Proprietary Information. Except as required in the performance
of Contractor's duties to Client, Contractor will not at any time during or
after the term hereof, directly or indirectly use, communicate, disclose,
disseminate, lecture upon, publish articles or otherwise put in the public
domain, any Proprietary Information relating to Client or Client's services,
products or business. Contractor agrees to deliver to Client any and all copies
of Proprietary Information in the possession or control of Contractor upon the
expiration or termination of this Agreement, or at any other time upon request
by Client. The provisions of this section shall survive the termination of this
Agreement.
7.3 Non-Competition and Non-Circumvention by Contractor. In consideration
and recognition of the fact that Contractor has access to Proprietary
Information under the terms and provisions of this Agreement and that Client
will be introducing Contractor to various product manufacturers, retailers and
distributors, Contractor represents, warrants and covenants to Client as
follows:
(a) Contractor shall at no time disclose to any person, without
Client's prior written consent, any of the terms, conditions or
provisions specified in this Agreement unless such disclosure is lawfully
required by any federal governmental agency or is otherwise required to
be disclosed by law or is necessary in any legal proceeding regarding the
subject matter of this Agreement.
(b) During the term of this Agreement, Contractor shall not
circumvent Client for the purpose of transacting any business with any
person or entity which business shall interfere with any relationship
whatsoever between such person or entity and Client, or use any
Proprietary Information to compete with the business of Client.
Contractor shall not solicit any of Client's employees, independent
contractors or agents for employment. Contractor shall not hire or
engage in any way, any enterprise or person that competes with, or is
engaged in a business substantially similar to, the business of Client.
(c) Contractor shall not for a period of one (1) year immediately
following the termination of this Agreement with Client, either directly
or indirectly (i) make known to any person, firm or corporation the names
or addresses of any of Client's clients or any other information
pertaining to them or Client's products or services; (ii) call on,
solicit, or take away, or attempt to call on, solicit or take away any of
Client's clients either on Contractor's behalf or that of another person,
firm or corporation.
(d) Contractor shall not, during the term hereof or for a period of
one (1) year following such term, enter into an agreement or contract
directly with any manufacturer, retailer or distributor introduced to
Contractor by Client for any services provided by Client herein or for
any similar services
(e) Contractor acknowledges and agrees that the representations,
warranties and covenants made by Contractor and set forth in this section
are material and that Client would not enter into this Agreement without
Contractor's making such representations, warranties and covenants to
Client.
(f) Contractor acknowledges and agrees that any breach by Contractor
of the representations, warranties and covenants contained herein will
cause irreparable harm and loss to Client, which harm and loss cannot be
reasonably or adequately compensated in damages in an action at law.
Therefore, Contractor expressly agrees that, in addition to any other
rights or remedies which Client may possess, Client shall be entitled to
injunctive and other equitable relief to prevent or remedy a breach of
the representations, warranties and covenants made by Contractor herein.
(g) The terms and provisions of this section shall survive the
termination of this Agreement for a period of one (1) year.
ARTICLE VIII
GENERAL PROVISIONS
8.1 Notices. Unless otherwise provided in this Agreement, any notice
required or permitted by this Agreement to be given to either party shall be
deemed to have been duly given if in writing and delivered personally or mailed
by first-class, registered or certified mail, postage prepaid and addressed as
follows:
If to Contractor: J & S Overseas Holdings Ltd.
Xxxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx Xxx Xxxx
SMB P.O. Box 1159
Xxxxxx Town, Cayman Islands
If to Client: Golden Spirit Minerals Ltd.
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
Xxxxxx X0X 0X0
8.2 Assignment of Contract. Contractor shall not assign or otherwise
transfer its rights under this Agreement, without the prior written consent of
Client. Any attempt to make such an assignment without Client's consent shall be
void. Client's consent shall not be reasonably withheld.
8.3 Amendments. Contractor and Client agree that this Agreement shall be
modified only by a written agreement duly executed by persons authorized to
execute agreements on their behalf.
8.4 Nonwaiver. Contractor and Client agree that no failure to exercise, and
no delay in exercising any right, power, or privilege hereunder on the part of
either party shall operate as a waiver of any right, power or privilege.
Contractor and Client further agree that no single or partial exercise of any
right, power, or privilege hereunder shall preclude its further exercise.
8.5 Payment of Monies Due Deceased Contractor. If Contractor dies before
completing the services under this Agreement, any monies due Contractor from
Client under this Agreement as of the date of death will be paid to Contractor's
executors, administrators, heirs, personal representatives, successors and
assigns.
8.6 Attorneys' Fees. If any legal or equitable action is necessary to
enforce the terms of this Agreement, the prevailing party shall be entitled to
reasonable attorneys' fees in addition to any other relief to which that party
may be entitled. This provision shall be construed as applicable to the entire
Agreement.
8.7 Severability. If any part of this Agreement is adjudged by any court of
competent jurisdiction to be invalid, that judgment shall not affect or nullify
the remainder of this Agreement, and the effect shall be confined to the part
immediately involved in the controversy adjudged.
8.8 Governing Law. This Agreement shall be deemed to have been made in, and
shall be construed pursuant to, the laws of the State of Delaware.
8.9 Entire Agreement. Client and Contractor acknowledge and agree that this
Agreement including the Exhibits attached hereto, is the complete and exclusive
statement of the mutual understanding of the parties and that it supersedes and
cancels all previous written and oral agreements and communications relating to
the subject matter of this Agreement.
8.10 Indemnification. Contractor shall save Client and its agents, officers,
directors, shareholders, employees, attorneys, successors, predecessors, parent
and subsidiary corporations, affiliates, accountants, representatives,
contractors, and assigns and all persons acting by, through, under or in concert
with any of them, harmless from and against and shall indemnify Client and its
agents, officers, directors, shareholders, employees, attorneys, successors,
predecessors, parent and subsidiary corporations, affiliates, accountants,
representatives, contractors, and assigns and all persons acting by, through,
under or in concert with any of them, for any liability, loss, costs, expenses,
or damages howsoever caused by reason of any injury (whether to body, property,
or personal or business character or reputation) sustained by any person or to
property by reason of any act, neglect, default or omission of Contractor or any
of Contractor's agents, employees, or other representatives, and Contractor
shall pay all amounts to be paid or discharged in case of an action or any such
damages or injuries. If Client or its agents, officers, directors,
shareholders, employees, attorneys, successors, predecessors, parent and
subsidiary corporations, affiliates, accountants, representatives, contractors,
and assigns and all persons acting by, through, under or in concert with any of
them, is sued in any court for damages by reason of any of the acts of
Contractor, Contractor or such other party shall defend the resulting action (or
cause same to be defended) at Contractor's expense and shall pay and discharge
any judgment that may be rendered in any such action; if Contractor fails or
neglects to so defend in such action, Client may defend such action and any
expenses, including reasonable attorneys' fees, which Client may pay or incur in
defending such action and the amount of any judgment which Client may be
required to pay shall be promptly reimbursed by Contractor upon demand by
Client.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be signed on
the date first written above.
CONTRACTOR CLIENT
J & S Overseas Holdings Ltd. Golden Spirit Minerals Ltd.
a Cayman Islands Corporation a Delaware Corporation
/s/: Xxxxx Limited /s/: X. Xxxxx
By: _________________ By: ______________________
Its: Authorized Signatory Its: President
/s/: X. Xxxxxx
By: _______________________
Its: Secretary
