Exhibit 10.5
EXCLUSIVE AGENCY AGREEMENT
THIS AGREEMENT (this "Agreement") is made effective as of the 21st day of
October, 2004 (the "Effective Date"), by and between El Capitan Precious Metals,
Inc., a Nevada corporation having its principal office at 00000 Xxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxx 00000 (hereinafter referred to as "El Capitan"), and AFC
Trade Services Corporation, LLC, a Delaware limited liability company having
offices at 00000 Xxxxx Xxxxxxxxxx Xxx, Xxxxx 000, Xxxxxxxxxx Xxxxxxx 00000
(hereinafter referred to as "Representative").
Recitals
A. El Capitan wishes to sell iron ore to buyers based in Asia.
B. Representative possesses expertise in the marketing and sale of iron
ore to buyers based in Asia.
C. El Capitan desires to engage Representative to act as El Capitan's
representative in connection with the solicitation and sale of iron ore to
buyers based in Asia, and Representative desires to be engaged for such purpose,
upon the terms and conditions set forth herein. El Capitan further wishes to
compensate Representative for services provided to El Capitan prior to the date
hereof.
NOW THEREFORE in consideration of the foregoing recitals, the covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. APPOINTMENT
Subject to the terms and conditions of this Agreement, El Capitan
appoints Representative as El Capitan's exclusive representative for the
solicitation and sale of iron ore to buyers based in Asia.
2. COMPENSATION
As sole compensation and payment in full for the services rendered by
Representative under this Agreement, El Capitan shall provide compensation as
provided in this Section 2, subject to the terms and conditions of this
Agreement:
a) As promptly following the Effective Date as can be arranged with El
Capitan's transfer agent, El Capitan shall deliver to Representative a
certificate representing 1,536,859 restricted shares of El Capitan's Common
Stock (the "Shares").
b) On the Effective Date, El Capitan shall provide a nonrefundable
commission advance to Representative in the amount of $100,000. Such amount
shall be applied against El Capitan's obligation to pay commissions as provided
in Section 2(c) - (h) below.
c) El Capitan shall pay Representative a commission of two dollars
(USD2.00) per metric ton of iron ore for which El Capitan has received payment
from a buyer in Asia as a result of Representative's efforts. If the customer
has made partial payment, El Capitan shall pay a prorated commission to
Representative, with the balance of the commission due when full payment is
received by El Capitan. No commission on a sale is earned by or due to
Representative until El Capitan has received payment from the customer. The
commission obligation described in this subparagraph 2(c) shall survive the
expiration of this Agreement.
d) Commissions are due and payable within 10 business days following
completion of the calendar month in which El Capitan's customer has paid El
Capitan, and shall be accompanied by a statement reasonably detailing the
commission calculation.
e) There shall be deducted from any sums due Representative an amount
equal to commissions previously paid or credited on allowances or refunds paid
or credited to the customer for any reason by El Capitan, including without
limitation the customer's bankruptcy, insolvency or any other reason. The
foregoing amounts shall be refunded by Representative if no further commissions
are due.
f) All orders obtained by Representative are subject to approval by El
Capitan, and El Capitan reserves the right, in its sole discretion, with or
without notice or cause, to accept, reject, or cancel any order or portion
thereof submitted by Representative, or having accepted any such order, El
Capitan may decline to fill the same without any liability for any commissions
thereon. All sales quotations made by Representative to customers or prospective
customers must be made expressly subject to El Capitan's approval, and El
Capitan shall be under no obligation to sell any iron ore until it delivers
written acceptance of an order to the customer. Representative agrees that any
failure to supply any iron ore, making only partial shipment, delayed shipment,
or no shipment at all, for any reason whatsoever, against any order solicited by
Representative, shall not render El Capitan liable or responsible in any way to
Representative.
g) Representative shall not solicit orders from persons, corporations or
other entities outside Asia. Representative understands that no commissions or
other compensation will be paid on sales outside Asia.
h) Notwithstanding the provisions of this Article 2, El Capitan shall not
be required to pay to Representative any commission whatsoever in the event
payment of such fee is illegal, or shall become illegal. However, in this event,
the parties will attempt, in good faith, to amend this Agreement so as to
conform to the then current law.
3. REPRESENTATIVE'S RELATIONSHIP AND CONDUCT OF BUSINESS
a) Representative shall render expert advice and assistance to El Capitan
and utilize its best efforts to secure purchasers of iron ore based in Asia,
including maintaining active communications with El Capitan and supplying timely
information to allow El Capitan to adjust to changing market conditions.
Representative will provide El Capitan information reasonably available and
necessary with regard to each prospective purchaser.
b) Representative shall provide assistance in closing sales transactions
and shall assist in the maintenance and continuation of customer relationships
following the execution of purchase agreements for iron ore.
c) Representative shall have no authority, actual or implied, to bind or
commit El Capitan in any way. Representative's authority under this Agreement is
limited to soliciting orders for the purchase of iron ore by buyers based in
Asia at the prices and on the terms of sale established by El Capitan.
d) Representative shall conduct all of its business in its own name and
pay all expenses and disbursements incurred by Representative in the performance
of all duties hereunder.
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e) Representative shall conduct its business in accordance with the
highest professional ethics, and shall be truthful, accurate and not misleading
in any communications to El Capitan, customers or others about or regarding El
Capitan, the iron ore, and El Capitan's business or personnel.
f) Representative is an independent contractor. Nothing in this Agreement
shall be constructed to constitute Representative as the partner, employee or
agent of El Capitan; each party shall at all times remain independent and
responsible only for its own actions. Representative shall not undertake any
action on behalf of El Capitan except as contemplated herein without El
Capitan's express prior written authorization.
g) During the term of this Agreement (including any renewals or extensions
thereof) and for a period of one year after termination, Representative agrees
that it shall not participate, directly or indirectly, in other contractual or
business relationships that are or may become competitive with the efforts of El
Capitan or Representative to sell iron ore as contemplated hereunder. As part of
the obligation provided by the preceding sentence, Representative agrees that
Representative shall not, either directly or indirectly, solicit, attempt to
solicit, take away, attempt to take away, or otherwise interfere with El
Capitan's relationship with any existing customer (or prospective customer under
active consideration by El Capitan) as of the date hereof or any person that
becomes a customer or prospective customer of El Capitan during the term of this
Agreement (including any renewals or extensions thereof).
4. COMPLIANCE WITH LAW.
a) Representative agrees that in carrying out its duties and
responsibilities under this Agreement, it will neither undertake, nor cause nor
permit to be undertaken, any activity which either (i) is illegal under any
laws, decrees, rules or regulations in effect in the United States or any
country in Asia in which Representative does business on behalf of El Capitan,
or (ii) would have the effect of causing El Capitan to be in violation of any
laws, decrees, rules or regulations in effect in the United States or in any
country in Asia in which Representative does business on behalf of El Capitan.
b) Representative agrees that, in connection with this Agreement, it will
not, directly or indirectly, give, offer, promise, authorize, or tolerate to be
given, offered or promised, anything of value to an official or employee of the
government of any country in Asia in which Representative does business on
behalf of El Capitan or of any subdivision thereof with the intent to (i)
influence any official act or decision of such official or employee, or (ii)
induce such official or employee to use its influence to affect or influence any
act or decision of the government of any country in Asia in which Representative
does business on behalf of El Capitan or of any subdivision thereof.
c) Representative agrees that, in connection with this Agreement, it will
not directly or indirectly give, offer, promise, authorize, or tolerate to be
given, offered or promised anything of value to another person knowing or having
reason to know that such thing of value is to be given, offered or promised to
an official or employee of the government of any country in Asia in which
Representative does business on behalf of El Capitan or of any subdivision
thereof with the intent to (i) influence any official act or decision of such
official or employee, or (ii) induce such official or employee to use its
influence to affect or influence any act or decision of the government of any
country in Asia in which Representative does business on behalf of El Capitan or
of any subdivision thereof.
d) Representative further agrees and warrants that no owner, shareholder
(direct or beneficial), officer, director, employee or representative of
Representative is an official of any government, as that term is used in this
paragraph, nor will Representative employ such an official. Representative shall
immediately inform El Capitan of any material change in the ownership or control
of Representative.
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e) For the purpose of this Article 4, the term "official or employee of
the government of any country in Asia in which Representative does business on
behalf of El Capitan" shall include any political party or any official thereof
or any candidate for foreign public office.
f) Representative hereby warrants and represents to El Capitan that
neither the laws, nor regulations of any country in Asia in which Representative
does business on behalf of El Capitan prohibit, in any way, (i) the entering
into, and complete performance by the parties of all of the provisions of this
Agreement; or (ii) the payment by El Capitan to the Representative of the
compensation described in Article 2 of this Agreement.
g) Representative hereby acknowledges and agrees that should the tender,
bid, procurement, or contract provisions of any particular sales opportunity
related to the sale of El Capitan's iron ore in any country in Asia in which
Representative does business on behalf of El Capitan prohibit the use of a
Representative or Representative, or prohibit the payment of sales commission to
such Representative or Representative, the Representative's appointment
hereunder with respect to such particular sales opportunity shall immediately
terminate and El Capitan shall have no obligation whatsoever to the
Representative to pay any sales commissions pursuant to the provisions of
Article 2 hereof with respect to such particular sales opportunity.
h) If Representative breaches any of the covenants set forth in Article 4
a), b), c), d) or f) above: (i) El Capitan shall have the right to immediately
terminate the Agreement for cause; (ii) El Capitan shall have a right of action
against Representative for the amount of any monetary payment or thing of value
made or given by the Representative in breach of any of the above-mentioned
covenants; (iii) all obligation by El Capitan to pay Representative sales
commissions pursuant to Article 2 of this Agreement shall cease; and (iv)
Representative shall indemnify El Capitan for any penalty, loss or expenses
incurred by El Capitan as a result of Representative's breach of any of its
obligations under this Article 4.
5. TAXES
Representative acknowledges and agrees that it shall be solely responsible
to report to the applicable tax authorities all commissions or other
compensation earned and to pay all federal, state, local income and
self-employment taxes and other assessments required to be paid by
Representative under the law. El Capitan shall, to the extent it is legally
required to do so, file all necessary tax information and reports to the
federal, state and local taxing authorities, including without limitation, an
Internal Revenue Service Form 1099, to report Representative's income. El
Capitan shall not withhold any amounts for payment of income taxes, social
security taxes, disability or unemployment insurance payments from commissions
or other compensation earned by Representative, unless specifically required to
do so by law. The provisions of this paragraph shall survive the expiration or
termination of this Agreement.
6. CONFIDENTIALITY
All information obtained by Representative in connection with this
Agreement, including, but not limited to, technical and cost information
furnished to Representative by El Capitan or by a customer or potential customer
in connection with El Capitan's proposals, bids, quotations, or contracts, and
customer or prospective customer names, shall be the property of El Capitan and
shall be treated by Representative as confidential proprietary information which
Representative shall not disclose to any third party (including any customer or
potential customer) except with the prior written approval of El Capitan in each
instance. Representative agrees if it receives technical information it will
provide a written assurance that such information will not be re-exported to any
country in violation of the United States Export Administration Regulations.
This obligation of confidentiality shall survive the expiration or termination
of this Agreement and any extension thereof.
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7. TRADEMARKS AND TRADE NAMES
a) El Capitan expressly prohibits any direct or indirect use, reference
to, or other employment of the name, trademarks, or trade names of El Capitan,
or its suppliers (including any abbreviation, modification, or variance
thereof), except as specified in this Article 6 or as expressly authorized by El
Capitan in writing.
b) Representative may describe itself as a El Capitan's representative
during the term of this Agreement. Representative shall not use El Capitan's
trademark or trade name as part of Representative's name or xxxx or in any other
manner which would cause a reasonable person to infer that Representative has
any affiliation with El Capitan other than the right expressly given in this
Agreement.
c) Representative shall, upon termination or expiration of this Agreement,
discontinue any use of trademarks or trade names of El Capitan in any
advertising or other material relating thereto.
8. TERM AND TERMINATION
a) This Agreement shall commence on the Effective Date and shall continue
for a period of 10 years from the Effective Date (the "Term"); provided,
however, that the parties may mutually agree to extend the Term for successive
twelve (12) month periods, unless earlier terminated by either party as provided
herein.
b) Notwithstanding Section 7(a), this Agreement may be terminated by El
Capitan upon 30 days notice in the event Representative: (i) breaches any of its
obligations hereunder and fails to cure such breach within 30 days after receipt
of written notice; or (ii) has a bona fide action taken against it under Federal
or state bankruptcy or insolvency laws related to the relief of debtors, becomes
insolvent or makes an assignment for the benefit of its creditors or any general
arrangement with its creditors or admits, in writing, inability to pay debts as
they mature. Representative shall give El Capitan immediate notice of the
occurrence of the foregoing events described in this paragraph.
c) In the event of the termination of this Agreement, Representative
agrees that El Capitan shall not be liable for (i) prior efforts in promoting
goodwill for either El Capitan or its products; (ii) any costs incurred in the
performance of this Agreement, or (iii) any loss of profits or any losses,
damages, costs, and expenses arising from or with respect to such termination.
9. LIMITATION OF LIABILITY
IN NO EVENT WHETHER AS A RESULT OF BREACH OF CONTRACT, NEGLIGENCE, STRICT
LIABILITY, OR OTHER TORT, OR OTHERWISE, SHALL EITHER PARTY BE LIABLE FOR ANY
INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT
LIMITED TO, LOSS OF PROFITS OR REVENUE) IN CONNECTION WITH OR ARISING OUT OF
THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
LOSS OR DAMAGE.
10. ARBITRATION
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Any controversy or claim arising out of or relating to this Agreement, or
the breach thereof, shall be settled by arbitration in the County of Maricopa,
Arizona in accordance with the Rules of the American Arbitration Association
("AAA") by a single arbitrator to be designated by AAA, and judgment upon the
decision rendered by the arbitrator may be entered in any court having
jurisdiction thereof. Any decision by the arbitrator shall be final and binding,
and except in cases of fraud or gross misconduct by the arbitrator, the decision
rendered shall not be appealable. The prevailing party in the arbitration
proceeding shall be entitled to recover attorney's fees, all reasonable
out-of-pocket costs and disbursements, as well as any and all charges which may
be made for the arbitration's cost and the fees of the arbitrator.
11. INVESTOR REPRESENTATIONS AND WARRANTIES Representative acknowledges,
warrants and represents to El Capitan as follows:
a) Representative has obtained and reviewed (i) El Capitan's Quarterly
Reports on Form 10-QSB for the quarters ended December 31, 2003, March 31, 2004
and June 30, 2004; Annual Report on Form 10-KSB for the fiscal year ended
September 30, 2003; Information Statement on Schedule 14C filed with the SEC on
June 28, 2004; and press releases issued on September 23, 2004, September 20,
2004, September 2, 2004, and July 28, 2004; and (ii) any other documents
specifically requested by Representative (all such documents are collectively
referred to hereinafter as the "Disclosure Documents").
b) Representative has, either alone or with the assistance of a
professional advisor, sufficient knowledge and experience in financial and
business matters that Representative believes himself/herself (or itself)
capable of evaluating the merits and risks of the prospective investment in the
Shares and the suitability of an investment in El Capitan in light of
Representative's financial condition and investment needs, and legal, tax and
accounting matters.
c) Representative has been given access to full and complete information
regarding El Capitan and has utilized such access to Representative's
satisfaction for the purpose of obtaining information in addition to, or
verifying information included in, the Disclosure Documents. Particularly,
Representative has been given reasonable opportunity to meet with and/or contact
El Capitan representatives for the purpose of asking questions of, and receiving
answers from, such representatives concerning any additional information, to the
extent reasonably available, necessary to verify the accuracy of information
provided in the Disclosure Documents.
d) Representative recognizes that an investment in the Shares involves a
high degree of risk, including but not limited to the risk of losing
Representative's entire investment in El Capitan.
e) No federal or state agency, including the United States Securities and
Exchange Commission or the securities commission or authority of any state, has
approved or disapproved the Shares, passed upon or endorsed the merits of the
Shares or the accuracy or adequacy of the Disclosure Documents, or made any
finding or determination as to the fairness or fitness of the Shares for public
sale.
f) Representative has relied upon the advice of Representative's legal
counsel and accountants or other financial advisors with respect to tax and
other considerations relating to the Shares. Representative is not relying upon
El Capitan with respect to the economic considerations involved to make an
investment decision in the Shares.
g) It is Representative's intent to acquire the Shares for the account of
Representative, for investment purposes and not with a view to resale of the
Shares in connection with any distribution thereof.
h) Representative intends to receive and hold the Shares for
Representative's own account.
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i) Representative has no contract, undertaking, agreement or arrangement
with any person or entity to sell or otherwise transfer the Shares to any such
person or entity or to have any such person or entity sell the Shares on
Representative's behalf.
j) Representative, if other than an individual, represents and warrants
that (i) it was not organized for the specific purpose of acquiring the Shares,
and (ii) this agreement has been duly authorized by all necessary action on the
part of Representative, has been duly executed by an authorized officer or
representative of Representative, and is a legal, valid and binding obligation
of Representative enforceable in accordance with its terms.
k) With respect to the registration status and transferability of the
Shares (in addition to restrictions noted above), Representative understands,
acknowledges and agrees that:
i) The Shares have not been registered under the Securities Act of
1933 (the "Act") or under applicable state securities laws on the grounds that
they are being issued in a transaction not involving a public offering and that,
consequently, such transaction is exempt from registration under the Act and
applicable state securities laws. El Capitan will rely on Representative's
representations herein as a basis for the exemption from the Act's registration
requirements.
ii) The Shares may not be sold, transferred or otherwise disposed of
except pursuant to an effective registration statement or appropriate exemption
from registration under applicable law (including without limitation Rule 144
under the Act) and, as a result, Representative may be required to hold the
Shares for an indefinite period of time.
iii) Certificates representing the Shares will bear a legend
substantially in the following form:
The securities represented hereby have not been registered
under the Securities Act of 1933, as amended, or the
securities law of any state. Such securities have been
acquired for investment and without a view to their
distribution and may not be sold or otherwise disposed of in
the absence of any effective registration statement for such
securities under the Securities Act of 1933, as amended, and
under applicable state securities laws, unless an exemption
from registration is available under applicable securities
laws.
12. PRECIOUS METALS
Representative shall be El Capitan's exclusive agent for sales of precious
metals into Asia, provided that the parties shall have entered into a mutually
acceptable agreement providing market-based terms with respect thereto.
13. GENERAL
a) This Agreement is the entire agreement between El Capitan and
Representative and supersedes all prior oral and written communications and
agreements with respect to the subject matter hereof. Any amendment or
modification thereto shall be in writing and shall be executed only by duly
authorized representatives in the same manner as this Agreement.
b) The provisions of this Agreement are severable, and if any one or more
such provisions are determined to be illegal or otherwise unenforceable, in
whole or in part, the remaining provisions or portions thereof shall,
nevertheless, be binding on and enforceable by and between the parties hereto.
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c) Any and all notices required or permitted to be given by any of the
provisions of this Agreement must be in writing and shall be deemed to have been
sufficiently given only when either delivered personally against receipt
therefor or when sent by a commercial courier, return receipt requested, postage
prepaid, addressed to El Capitan at its principal place of business as set forth
above and to Representative at its principal place of business as set forth
above, or to such other address of which El Capitan or Representative, as the
case may be, shall give written notice from time to time in the required manner.
d) Representative agrees that neither this Agreement nor any of the rights
and obligations of Representative hereunder, including the right to receive
payment of commissions, shall be assigned voluntarily or by operation of law
without prior written consent of El Capitan. This Agreement shall be binding
upon and inure to the benefit of and be enforceable by the successors and/or
permitted assigns of the parties.
e) This Agreement is entered into voluntarily. Representative has read,
understands, and agrees to all of the provisions of this Agreement. Both parties
have had a full opportunity to consult attorneys or other advisers of their
choosing with regard to this Agreement. This Agreement shall not be construed in
favor of or against either party.
f) Representative shall be solely responsible for consideration or
compensation (if any) owed or owing in any form or fashion to Xxxxx Xxxxxxxx or
Xxxx Xxxxxx, and neither El Capitan nor its subsidiaries or affiliates shall
have any liability or responsibility for any such consideration or compensation.
g) This Agreement shall be constructed according to the laws of the State
of Arizona, without regard for its conflicts of laws principles.
IN WITNESS HEREOF the parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.
ECPN AFC
By: By: ____________________________
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Name: Name: __________________________
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Title: Title: _________________________
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