CONSULTING SERVICES AGREEMENT
Exhibit
10.1
THIS
AGREEMENT
is made
as of the 1ST
day of
September, 2006
BETWEEN:
Pacific
Copper Corp. a
corporation incorporated under the laws of the State of Delaware
(herein
called the “Corporation”) Party
of
the First Part
-
and
-
Medallion
Capital Corp.,
a
corporation incorporated under the laws of the Province of Ontario,
Canada.
(herein
called
“Consultant”)
Party
of
the Second Part
RECITALS:
|
A.
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The
Corporation wishes to engage the Consultant to assist the Corporation
to
provide administrative services.
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|
B.
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The
Consultant wishes to accept this engagement by the
Corporation.
|
NOW
THEREFORE IN CONSIDERATION OF THE MUTUAL COVENANTS AND AGREEMENTS CONTAINED
IN
THIS AGREEMENT AND OTHER GOOD AND VALUABLE CONSIDERATION, THE PARTIES AGREE
AS
FOLLOWS:
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1.
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DEFINITIONS
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In
this
Agreement,
“Agreement”
means
this agreement as it may be amended from time to time;
“Compensation”
means
amounts set out in Section 4 hereof;
“Confidential
Information”
means
all confidential or proprietary information, intellectual property (including
trade secrets) and confidential facts relating to the business and affairs
of
the Corporation;
“Corporation”
includes
affiliates, subsidiaries and associates of the Corporation unless the context
otherwise requires;
“Expenses”
means
amounts set out in Section 5 hereof; and
1
“Term”
means
the period commencing September 1, 2006 and terminating in accordance with
Section 12 hereof.
| 2. |
REPRESENTATION
AND WARRANTIES
|
Each
of
the Corporation and the Consultant hereby covenants, represents and warrants
as
follows:
| (a) |
They
have all of the necessary corporate power, authority and capacity
to enter
into this agreement and the agreements and the other instruments
contemplated herein and to perform their respective obligations hereunder
and thereunder. The execution and delivery of this Agreement and
the
agreements and other instruments contemplated herein and the consummation
of the transactions contemplated hereunder and thereunder have or
will be
duly authorized by all necessary corporate action required by each
party;
|
| (b) |
This
Agreement and the agreements and other instruments contemplated herein
when executed will constitute valid and binding obligations of each
of the
parties enforceable against each of them as is applicable in accordance
with the terms hereof and thereof subject, however, to limitations
with
respect to enforcement imposed in connection with laws affecting
the
rights of creditors generally including, without limitation, applicable
bankruptcy, insolvency, moratorium, reorganization or similar laws
and to
the extent that equitable remedies such as specific performance and
conjunction are in the discretion of the court from which they are
sought;
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| (c) |
Each
of the parties are duly incorporated and organized, validly existing,
in
good standing and are up to date in all of the filings and registration
required under the laws of the jurisdiction in which they are
incorporated; and
|
| (d) |
The
entering into and performance of this Agreement and the agreements
and
other instruments contemplated herein will not violate, contravene,
breach
or offend against or result in any default under any security agreement,
indenture, mortgage, lease, order, undertaking, licence, permit,
agreement, instrument, charter or by-law provision, resolution of
shareholders or directors, statute, regulation, judgment, decree
or law to
which the parties hereto are a party or by which they may be bound
or
affected. No licenses, agreements or other instruments or documents
of the
Corporation or any of its Subsidiary will terminate or require assignment
as a result of the entering into of this Agreement or the consummation
of
the transactions contemplated
hereby.
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| 3. |
ENGAGEMENT
OF THE CONSULTANT
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The
Corporation hereby engages the Consultant for the Term to perform the following
services:
| (a) |
Provide
office space, office equipment, phones and
furniture;
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2
| (b) |
Employ
secretarial and bookkeeping
personnel;
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| (c) |
Advise
the Corporation regarding financial planning, corporate development
corporate governance;
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| (d) |
Prepare
or cause to be prepared all required documentation for the operation
of
the Corporation;
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| (e) |
Provide
instructions and directions to the Corporation's legal counsel and
auditors;
|
| (f) |
Insure
that all accounting records are maintained to meet generally accept
accounting principals and quarterly and annual reports are prepared
and
filed to meet regulatory
requirements;
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| (g) |
Such
other matters and activities as are required for the operation of
the
Corporation; and
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| (h) |
All
activities of the Consultant shall be carried out at the direction
of the
Board of Directors of the Corporation or its officers excluding any
officer of the Corporation associated with the
Consultant.
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| 4. |
COMPENSATION
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| (a) |
As
compensation for the services to be provided by the Consultant hereunder,
the Corporation agrees to pay the Consultant $7,500.00
per month during the Term in accordance with the provision of Section
6,
hereof;
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| (b) |
The
Consultant shall be reimbursed monthly for all expenses incurred
with
respect to the operation of the administration of the Corporation,
including but not limited to office rent, wages, phones and other
office
operational costs, provided that these expenses are incurred in
substantial accordance with monthly and annual budgets to be prepared
by
the Consultant and approved by the Board of Directors from time to
time;
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| (c) |
The
Consultant shall also be reimbursed for the cost of furniture and
equipment for the office provided the ownership of any furniture
and
equipment purchased shall vest with the Corporation, again provided
that
such capital expenditures are incurred in substantial accordance
with
monthly and annual budgets to be prepared by the Consultant and approved
by the Board of Directors from time to
time;
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| (d) |
The
Consultant shall provide receipts for all expenses and other items
for
which it is entitled to reimbursement and such other documentation
as may
be reasonably requested by the Corporation’s auditors;
and
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3
| (e) |
It
is understood that the Corporation has procedures for the authorization
of
all payments and the issuance of checks and which payments to the
Consultant are subject. The responsible for carrying out these procedures
are those of the Consultant its officers and
employees.
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| 5. |
TERMS
OF PAYMENT
|
Fees
and
expenses are billed monthly and are due on receipt of invoice. Amounts unpaid
after 15 days bear interest at the rate of 1.5% per month.
| 6. |
NATURE
OF RELATIONSHIP
|
It
is
acknowledged by the parties hereto that Xxxxxxxx Xxxxxx, President of the
Consultant is also an officer of the Corporation. The parties further
acknowledge and agree, solely with respect to the rights and obligations of
the
Consultant under this Agreement, as follows:
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(a)
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the
relationship of the Consultant to the Corporation is that of independent
contractors;
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(b)
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the
Consultant is not employees or agents of the Corporation;
and
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| (c) |
the
Corporation and the Consultant are not partners or joint venturers
with
each other.
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| 7. |
NO
CONFLICTS OF INTEREST
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The
Consultant will not engage in any business or other transaction or have any
financial or other personal interest which is incompatible with the performance
by the Consultant of the duties under this Agreement in the manner contemplated
by this Agreement.
The
Corporation acknowledges that the Consultant will provide from time to time
similar
services for other parties which shall not be considered a conflict of interest
subject
to the discharge of the Consultant’s obligations under this Agreement and in
particular
those related to confidentiality.
| 8. |
NO
USE OF CONFIDENTIAL
INFORMATION
|
During
and at all times after the Term, the Consultant will cause its officers,
directors and employees to keep confidential all Confidential Information and
will not use for the benefit of the Consultant its officers, directors and
employees or others (except in connection with the business and affairs of
the
Corporation in the course of providing services hereunder) any Confidential
Information and will not disclose Confidential Information to any person except
in the course of providing services under this Agreement to a person who is
employed by the Corporation or with the Corporation’s prior
consent.
4
The
foregoing prohibition will not apply to any Confidential Information
if:
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(a)
|
the
Confidential Information is available to the public or in the public
domain at the time of disclosure or use;
or
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(b)
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disclosure
is required to be made by operation of law, in which case the Consultants
will notify the Corporation immediately upon learning of that requirement;
or
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(c)
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disclosure
is made with the Corporation’s prior written
approval.
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| 9. |
NO
AUTHORITY TO BIND THE
CORPORATION
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Without
limiting the provisions of Section 3, the Consultant, in its capacity as
Consultant under this Agreement, has no authority to act on behalf of, or to
hold itself out to be an agent of the Corporation or to bind the Corporation
to
perform any obligations to any third party and the Consultant will, as
appropriate, so inform all third parties with whom the Consultant deals in
the
performance of its services. The Consultant will not use the name of the
Corporation in any advertisement or promotional or marketing material or,
without the use of any such name, suggest or imply in any such material that
the
Consultant has a relationship with the Corporation other than that established
by this Agreement, unless otherwise agreed to in writing by the
Corporation.
| 10. |
TERM
AND TERMINATION
|
The
Term
of this Agreement shall be one (1) year and shall automatically renew from
year
to year unless terminated. Either party may terminate this Agreement at anytime
on 60 days written notice subject to the provision of Sections 5, 7 and 10
hereof, which Sections shall survive the expiry or termination of this Agreement
and continue in full force and effect.
| 11. |
INDEMNIFICATION
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The
Corporation will indemnify the Consultant and its heirs and legal
representatives against all costs, charges and expenses, including all amounts
paid to settle an action or satisfy a judgement, reasonably incurred by the
Consultant in respect of any civil, criminal or administrative action or
proceeding to which the Consultants are a party by reason of being or having
been engaged by the Corporation under this Agreement (a “Claim”), other than an
action (including, without limitation, an action in contract or tort) by the
Corporation as a result of a breach or alleged breach by the Consultants of
this
Agreement or of any duty owed by the Consultant to the Corporation,
if:
|
(a)
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The
Consultant acted honestly and in good faith with a view to the best
interests of the Corporation; and
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5
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(b)
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In
the case of a criminal or administrative action or proceeding that
is
enforced by the monetary penalty, the Consultant had reasonable grounds
for believing that the conduct of the Consultant was
lawful.
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The
Consultant acknowledges that indemnification will be limited to costs, charges
and expenses actually incurred, and will be paid only if the consultant provides
the Corporation with prompt notice of any claim. The Corporation will have
the
right at its own expense, upon written notice to the Consultant, to assume
control of the negotiation, settlement or defence of any Claim and the
Consultant will co-operate fully with the Corporation in respect of such Claim.
If the Corporation does not elect to assume control of the negotiation,
settlement or defence of any Claim, the Consultant may retain its own counsel
to
defend the Claim and will keep the Corporation fully advised, including
supplying copies of all relevant documentation promptly as it becomes available.
The Consultant or the Corporation may not settle or compromise any Claim without
the prior written consent of the other party.
| 12. |
NOTICE
|
Any
notice or communication to be given or made under this Agreement must be in
writing and addressed as follows:
| (a) |
if
to the Corporation:
|
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Xxxxxx Xxx
c/o Sweet Water Capital Corporation
000 - 000 Xxxx Xxxxxx
Xxxxxxxxx, XX X0X 0X0
Phone: 000-000-0000
Fax: 000-000-0000
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|
And to:
Xxxx X. Xxxxxxxxxx
0000 Xxxxxxx Xxxx.
Xxxxx Xxx, XXXX X0X 0X0
Phone: 000-000-0000
Fax: 000-000-0000
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| (b) | if to the Consultant: |
|
Medallion Capital Corporation
0000 Xxxxx Xxxx Xxxx., Xxxxx 00X
Xxxxxxxx,
Xxxxxxx X0X 0X0
Attn: Xxxxxxxx
Xxxxxx
Phone:
000-000-0000
Fax:
000-000-0000
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6
and
will
be deemed to be properly given or made on the earliest of the
following:
| (a) |
actual
delivery;
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| (b) |
48
hours after being sent by commercial courier service;
and
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| (c) |
the
day following which any telegram or telecopier message is
sent.
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Notice
of
change of address for the purpose of notice will also be governed by this
section.
| 13. |
ASSIGNMENT
|
This
Agreement may not be assigned by any party, without the prior written consent
of
the other parties.
| 14. |
HEADINGS
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The
inclusion of headings in this Agreement is for convenience of reference only
and
is not to affect construction or interpretation.
| 15. |
INVALIDITY
OF PROVISIONS
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Any
provision of this Agreement that is prohibited or unenforceable in any
jurisdiction will, as to that jurisdiction, be ineffective to the extent of
the
prohibition or unenforceability without invalidating the remaining provisions
of
this Agreement, and any prohibition or unenforceability of that provision in
any
other jurisdiction. For any provision severed there will be deemed substituted
a
like provision to accomplish the intent of the parties as closely as possible
to
the provision as drafted, as determined by any court or arbitrator having
jurisdiction over any relevant proceeding, to the extent permitted by the
applicable law.
| 16. |
ENTIRE
AGREEMENT
|
This
Agreement constitutes the entire agreement between the parties pertaining to
the
subject matter. There are no warranties, representations or agreements between
the parties in connection with the subject matter except as are specifically
set
out or referred to in this Agreement. No reliance is placed on any
representation, opinion, advice or assertion of fact made by either party or
its
directors, officers or agents to the other party, or its directors, officers
or
agents, except to the extent that the same has been reduced to writing and
included as a term of this Agreement. Accordingly, there is to be no liability,
either in tort or in contract, assessed in relation to any such representation,
opinion, advice or assertion of fact, except to the extent
aforesaid.
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| 17. |
WAIVER,
AMENDMENT
|
Except
as
expressly provided in this Agreement, no amendment or waiver of this Agreement
will be binding unless executed in writing by the party to be bound. The failure
of either party at any time to require performance by the other party of any
provisions of this Agreement will in no way affect the right of that party
to
require performance of any other provisions. No waiver of any provision of
this
Agreement will constitute a waiver of any other provision nor will any waiver
of
any breach of any provision of this Agreement be construed as a waiver of any
continuing or succeeding breach of such provision unless otherwise expressly
provided.
| 18. |
CURRENCY
|
All
amounts in this Agreement are stated and will be paid in United States currency
unless otherwise specifically stated.
| 19. |
GOVERNING
LAW
|
This
Agreement is to be governed by and construed in accordance with the laws of
the
Province of Ontario and the laws of Canada applicable therein.
IN
WITNESS WHEREOF, THE CORPORATION AND THE CONSULTANTS HAVE EXECUTED THIS
AGREEMENT AS OF THE DATE FIRST WRITTEN ABOVE.
| PACIFIC COPPER CORP. | |||
| BY: /s/ Xxxx Xxxxxxxxxx | |||
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| MEDALLION CAPITAL CORP. | |||
| BY: /s/ Xxxxxxxx Xxxxxx | |||
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