AMENDED AND RESTATED CONSULTING AGREEMENT
EXHIBIT
10.13
AMENDED
AND RESTATED
This
Amended and Restated Consulting Agreement (the “Agreement”) is made effective as
of November 12, 2008, by and between Wits Basin Precious Minerals Inc., a
Minnesota corporation (“Wits Basin”), and Corporate Resource Management, Inc., a
Minnesota corporation (the “Consultant”).
RECITALS
WHEREAS,
the parties have entered into that certain Consulting Agreement dated as of
May
15, 2006 (the “Original Agreement”) relating to Consultant’s provision of
certain investment banking services, as an independent contractor, in connection
with the purchase and/or sale of mining-related assets (the “Asset
Transactions”); and
WHEREAS,
the parties wish to amend the terms of their consulting arrangement to the
terms
set forth herein, superseding the Original Agreement in its entirety.
AGREEMENT
NOW,
THEREFORE, for good and valuable consideration, the receipt of which is hereby
acknowledged, the parties agree as follows:
1. Effect
of Original Agreement.
The
Original Agreement is hereby superseded in its entirety and shall not have
further effect.
2. Consulting
Services.
Consultant agrees to provide certain investor relations and back office services
as set forth on Exhibit
A
hereto,
and any other related services as agreed upon by the parties. Consultant is
not
authorized to, and will not, participate in the preparation or delivery of
any
materials relating to the sale of Wits Basin’s securities, offer Wits Basin’s
securities, make any recommendations regarding Wits Basin’s securities, assist
in or provide financing for purchases of Wits Basin’s securities, represent that
Consultant is an agent of Wits Basin, participate in any negotiations relating
to the sale of Wits Basin’s securities or the terms of any sale of securities by
Wits Basin, or enter into agreements on behalf of or bind Wits
Basin.
3. Compensation.
For the
various services rendered hereunder, Consultant shall be entitled to a
consulting fee in the amount of Thirteen Thousand Seven Hundred Fifty Dollars
($13,750) per month during the term of this Agreement (the “Monthly Fee”).
Consultant shall be paid a prorated Monthly Fee for that portion of any
less-than-complete month during which the Agreement was in force. The Monthly
Fee is commencing retroactively to January 1, 2008.
4. Reimbursement
for Expenses.
Wits
Basin shall reimburse Consultant for all reasonable and necessary expenses
incurred and paid by Consultant in connection with the completion of
Consultant’s responsibilities, promptly following presentation to Wits Basin of
receipts for such expenses, provided that Consultant shall be required to obtain
the prior written consent of Wits Basin.
5. Independent
Contractor.
(a) Using
its
best efforts, Consultant shall devote such time to the performance of the
services described in this Agreement as may be necessary to satisfactorily
complete such services.
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(b) Consultant
shall be an independent contractor in the performance of this Agreement and
no
employee of Consultant shall be deemed an employee of Wits Basin for any purpose
whatsoever. Employees of Consultant shall not participate in any benefit
programs for Wits Basin 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 its income
taxes as required by any and all governmental agencies with respect to
compensation paid to Consultant by Wits Basin, and shall comply with all
regulations thereto.
(c) Consultant
shall have no power to act as an agent of Wits Basin or bind Wits Basin in
any
respect.
6. Intellectual
Property.
Consultant agrees that all documents and deliverables (collectively, the “Work
Materials”) created in whole or in part by Consultant in the course of or
related to the performance of this Agreement shall be treated as if they were
“works for hire” for Wits Basin. All ownership and control of the above Work
Materials, including any copyright, patent rights and all other
intellectual-property rights herein, shall vest exclusively with Wits Basin;
provided, however, that such Work Materials shall in no event cover materials
that Consultant is required to keep confidentially (including materials that
are
proprietary to other clients of Consultant) or materials that Consultant does
not have the right to sublicense to third parties.
7. Property.
Consultant will not remove from Wits Basin’s offices or premises any documents,
records, notebooks, files, correspondence, reports, memoranda, computer tapes,
computer disks or similar materials of or containing Confidential Information
(as defined below), or other materials or property of any kind, unless necessary
in accordance with Consultant’s duties and responsibilities, and in the event
that any of such material or property is removed, all of the foregoing will
be
returned to their proper files or places of safekeeping as promptly as possible
after the removal will have served its specific purpose; nor will Consultant
make, retain, remove or distribute any copies of any of the foregoing for any
reason whatsoever, except as may be necessary in the discharge of Consultant’s
assigned duties; and upon the termination of this Agreement, Consultant will
leave with or return to Wits Basin all originals and copies of the foregoing,
then in Consultant’s possession, whether prepared by Consultant or by
others.
8. Confidential
Information.
(a) Consultant
acknowledges and agrees that in the course of, or incident to, its provision
of
services to Wits Basin, Wits Basin will provide to Consultant, and Consultant
will otherwise have access to, Wits Basin’s trade secrets and confidential
information (collectively and singularly known as “Confidential Information” and
defined further below). Except as will be necessary in the performance of
Consultant’s obligations hereunder, Consultant will not disclose or use for
Consultant’s direct or indirect benefit or the direct or indirect benefit of any
third party, and Consultant will maintain, both during and after this Agreement
and Consultant’s provision of services to Wits Basin outside of this Agreement,
the confidentiality of any Confidential Information of Wits Basin. Upon Wits
Basin’s written consent permitting Consultant to provide or disclose any
Confidential Information, Consultant agrees to advise and inform any third
party
regarding the confidential nature of such information, and ensure that such
third party independently agrees in writing to be bound by the terms and
conditions set forth in Sections 6,
7
and
8
hereof.
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(b) For
purposes of this Agreement, “Confidential Information” means any and all
proprietary information of Wits Basin that derives independent economic value
by
virtue of its not being known to Wits Basin’s competitors or the general public
including, but not limited to, mining prospects, assay results, customer lists,
customer information, intellectual property, employee lists, employee
information, prospect lists, prospect information, pricing information,
inventions, graphic designs, product research and development, financial
statements, marketing plans, management systems and procedures, trade secrets,
supplier lists, sales techniques, software specifications and information,
results of research and development, whether complete or in process, and any
other information which Wits Basin identifies as Confidential Information.
Consultant will deliver to Wits Basin at the termination of this Agreement,
or
upon the completion of any services by Consultant to Wits Basin outside of
this
Agreement, or at any other time that Wits Basin may request, all memoranda,
notes, plans, records, diskettes, tapes and other storage media, documentation
and other materials (and copies thereof) containing Confidential Information,
no
matter where such material is located and no matter what form the material
may
be in, which Consultant may then possess or have under his control. If requested
by Wits Basin, Consultant will provide to Wits Basin written confirmation that
all such materials have been delivered to Wits Basin or have been destroyed.
Consultant will take all appropriate steps to safeguard Confidential Information
and to protect it against disclosure, misuse, espionage, loss and theft.
“Confidential Information” also includes any and all information which Wits
Basin obtains from another third party and treats as proprietary or designates
as confidential. The obligations of this Section will survive indefinitely
the
termination of this Agreement or Consultant’s provision of services to Wits
Basin outside this Agreement. All Wits Basin Confidential Information and any
and all results derived therefrom in any way will at all times remain the sole
property of Wits Basin.
For
the
purposes of this Agreement, “Confidential Information” shall not include
information which (i) had been made previously available to the public by Wits
Basin; (ii) is or becomes generally available to the public, unless the
information being made available to the public results in a breach of this
Agreement; (iii) 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 (iv) 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 Wits Basin, with respect to such
information and who does not require Consultant to refrain from disclosing
such
information to others. In any dispute relating to the obligations under this
Section 8,
the
burden of proof will be on the party receiving the Confidential Information
to
show that the exclusions herein apply.
9. Term;
Termination.
This
Agreement will become effective as of the date hereof and will continue for
one
(1) year thereafter (the “Term”), unless terminated earlier by either party for
any reason with thirty (30) days’ prior written notice to the other party. The
Term shall automatically extend for additional successive one (1) year period
unless either party provides to the other party written notice of such party’s
intent not to renew the term for an additional year at least thirty (30) days
prior to the end of the then current period. During any renewal term, either
party may terminate this Agreement for any reason with thirty (30) days’ prior
written notice to the other party. Notwithstanding the foregoing, either party
may immediately terminate this Agreement without thirty (30) days’ prior written
notice in the event the other party breaches any of its material obligations
hereunder and such party fails to cure such breach within ten (10) days of
receipt of notice of such breach from the other party.
In
the
event Wits Basin terminates this Agreement for any reason, prior to the first
anniversary of the date of this Agreement, other than a breach by Consultant
of
its material obligations under this Agreement (and failure to cure within the
period specified above), Consultant will be entitled to a termination fee in
the
amount of Seventy-Five Thousand Dollars ($75,000).
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10. Representations
and Warranties.
Wits
Basin and Consultant hereby represent and warrant to each other that their
respective execution, delivery and performance of this Agreement will not (a)
violate or breach Wits Basin’s and/or Consultant’s articles of incorporation or
corporate bylaws, or (b) result in a breach of any of the terms or conditions
of, or constitute a default under, any mortgage, note, bond, indenture,
agreement, license or other instrument or obligation to which Wits Basin or
Consultant is now a party or by which any of them or any of their respective
properties or assets may be bound or affected, or (c) violate any order, writ,
injunction or decree of any court, administrative agency or governmental body
in
any respect, the violation or breach of which would prevent Wits Basin or
Consultant from consummating the transactions contemplated herein.
11. Indemnification.
Consultant shall indemnify and hold Wits Basin, and its shareholders, directors,
employees and agents (collectively, together with Wits Basin, the “Affiliates”)
harmless from and against any and all liabilities, losses, damages, claims,
costs, causes of action and expenses, including but not limited to the costs
of
defense and reasonable attorneys’ fees, suffered, paid or incurred by any of the
Affiliates, whether or not suit is filed, arising out of, resulting from or
connected with, in whole or in part, the intentional misconduct or gross
negligence of Consultant. The obligations of this Section 11
shall
forever survive the termination of this Agreement.
12. 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) Governing
Law; Remedies.
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 without
regard to conflicts of law principles. Consultant acknowledges and agrees that
a
violation of the terms of this Agreement would cause irreparable harm to Wits
Basin, and that Wits Basin’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, Wits Basin 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 Wits Basin
that both damages and injunctions shall be proper modes of relief and are not
to
be considered as alternative remedies.
(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) Assignment
and Delegation.
Consultant will not have the right to assign its rights under this Agreement
or
delegate any of his obligations under this Agreement without Wits Basin’s prior
written consent, which consent may be withheld in Wits Basin’s sole and absolute
discretion. To the extent assignable or delegable as described in the preceding
sentence, the rights of each party hereunder shall inure to the benefit of
each
party’s successors and assigns.
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In
Witness Whereof, the undersigned have set their hands to this Agreement to
be
effective as of the date first written above.
WITS
BASIN:
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By:
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/s/
Xxxx X Xxxxx
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Xxxx
X. Xxxxx, Chief Financial Officer
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CONSULTANT:
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CORPORATE
RESOURCE MANAGEMENT, INC.
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By:
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/s/
Xxxxx Xxxxxx
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Xxxxx
Xxxxxx, President
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Signature
Page to
Amended
and Restated Consulting Agreement
Exhibit
A
CRM
Contract Description of Services
Consultant
agrees to provide general oversight and management in regard to strategic
planning, team management and resource management related to but not limited
to:
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Investor
Relations / Public Relations
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·
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Marketing
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Support
Resources for Wits Basin executive
team
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·
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Investment
banking services regarding project capitalization and corporate
finance
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Consultant
is not authorized to, and will not, participate in the preparation or delivery
of any materials relating to the sale of Wits Basin’s securities, offer Wits
Basin’s securities, make any recommendations regarding Wits Basin’s securities,
assist in or provide financing for purchase of Wits Basin’s securities,
represent that Consultant is an agent for Wits Basin, participate in any
negotiations relating to the sale of Wits Basin’s securities or the terms of any
sale of securities by Wits Basin, or enter into agreements on behalf of or
bind
Wits Basins. Consultant is not a licensed broker-dealer.