LIMITED AGENCY AND SERVICES AGREEMENT
EXHIBIT
10.1
This
Limited Agency and Services
Agreement (hereinafter “Agreement”) is dated for reference September 10,
2010 and executed by the following parties:
Oro East Mining, Inc.
(hereinafter “Principal”), a Delaware corporation filed with the U.S. Securities
Exchange Commission, CIK Ref. Number 0001430174, with office address at 00/X
Xxxxx 0, Xxxxxxxxxx Xxxx, 000 Xxxx Xxxx Xxxx, Xxxx Xxxx, Xxxxxxx, Xxxx Xxxx;
and
Sichuan Dujiangyan Xxxxx Company,
Limited, dba Xxxxx Co., Ltd. (hereinafter “Agent”), a privately held
Chinese corporation, with principal place of business located at Building Xx. 00
Xxxxxx Xxxxx, Xxxxxxx Xxxxxx, Xxxxxxxxxx, Sichuan, People’s Republic of
China.
RECITALS
WHEREAS,
Principal is a start-up mining corporation seeking to commence mining and
excavation activities at certain claims located throughout Southeast Asia owned
and managed by Principal;
WHEREAS,
Agent is a company skilled and experienced in mining operations;
WHEREAS,
Principal retains Agent to procure mining equipment as set forth in Exhibit A for the
benefit of Principal, and to initially fund cash flow for the first three (3)
months of mining operations, to be funded in Chinese Renmenbi
(RMB);
WHEREAS,
in consideration for Agent’s services and funding, Principal shall pay Agent
Eight Hundred Sixty Thousand U.S. Dollars ($860,000.00 USD) with an interest
rate of Four Percent (4%) per annum, payable and to be delivered to Agent on or
before November 10, 2010 in cash, or in the alternative, Agent has the option to
receive the consideration as stock in Principal’s company at Two U.S. Dollars
($2.00 USD) per share, up to the amount Agent is owed;
WHEREAS,
this Agreement states the terms and conditions by which Agent shall deliver and
Principal shall receive certain services provided by Agent as set forth herein
this Agreement.
AGREEMENT
NOW
THEREFORE, the undersigned parties integrate the foregoing recitals into the
binding body of this Agreement and hereby agree to be bound for good and
valuable consideration as follows:
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1.
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Scope of Authority.
Agent has been retained to carry out two primary
activities:
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a.
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Equipment Purchase.
Agent shall purchase equipment for Principal, which shall help
Principal commence mining operations located throughout Southeast Asia.
Agent shall be responsible for obtaining any and all equipment reasonably
necessary for Principal to commence the Target Mining Operations. In
addition, Agent shall negotiate Best Prices for the equipment and must
provide documentation of research and market analysis to support that
Agent has purchased all equipment at the lowest and most competitive rates
on the market. Agent must maintain complete books and records of all
purchases recorded pursuant to Generally Accepted Accounting Principles,
and provide all receipts of equipment
purchased.
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b.
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Cash Flow Funding. Agent
agrees that it shall help fund the first 3 months of cash flow for mining
operations of Principal in the Republic of Philippines, and that cash flow
shall be used for the purchase of equipment and payroll of mines workers
and/or subcontractors, among any other transactions or activities
reasonably commercially necessary for the start-up mining operations of
Principal as set forth in Exhibit A. Such cash flow funding shall be
tendered in Chinese Renmenbi (RMB).
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2.
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Compensation. In
consideration for Agent’s services and funding, Principal shall pay Agent
Eight Hundred Sixty Thousand U.S. Dollars ($860,000.00 USD) with an
interest rate of Four Percent (4%) per annum (hereinafter “Contract
Price”), payable and to be delivered to Agent on or before November 10,
2010 in cash, or in the alternative, Agent has the option to receive the
consideration as stock in Principal’s company as set forth and described
in Exhibit
A, attached hereto and incorporated by reference, at Two U.S.
Dollars ($2.00 USD) per share, up to the amount Agent is owed ($860,000.00
USD plus 4% interest per annum). The Contract Price is the full and
complete consideration for the terms set forth in the Scope of Authority
term supra,
Covenants 1(a) and 1(b), Equipment Purchase and Cash Flow Funding,
respectively. The parties do not foresee the costs of Agent’s obligations
to exceed the Contract Price, but even if it does, the risk of loss or
liability is borne by Agent.
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3.
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Books Available on Principal’s
Demand. Agent shall maintain at all times complete books and
records of all transactions and activities of Agent on behalf of Principal
as it arises from this Agreement, and those books and records shall be
made available to Principal for inspection at any time upon Principal’s
demand. If at any time Agent has failed to maintain complete books and
records of all transactions and activities, such failure and omission
shall constitute breach of this
Agreement.
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4.
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Bi-Weekly Updates. Agent
shall submit a written report to Principal’s President, Xxxxx Xxxxx, at
minimum once every two weeks to provide a listing of all equipment already
purchased, in the process of purchasing, or to be purchased, along with an
outline of all activities and transactions, and status updates on the
progress of operations.
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5.
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Term of Agreement. This
Agreement shall endure for a period of approximately Three (3) Months,
commencing on the date of execution of this Agreement and terminating
automatically on November 1, 2010, unless earlier expressly terminated by
the parties.
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6.
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Termination of
Agreement. Any party to this Agreement may terminate the Agreement
for cause, or breach by the other party. Any failure to meet the terms of
this Agreement, any express covenant whatsoever, shall constitute a
material breach of the Agreement. The terminating party shall send written
notice to the breaching party of termination and the breach or alleged
breach. Breaching party or allegedly breaching party is entitled to Three
(3) days to correct any breach or alleged breach, and failure to do so
within the three days shall allow the terminating party to proceed with
termination absolutely and pursue any recourse or claim of recovery deemed
necessary.
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7.
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Non-Disclosure
Agreement. As part of the consideration required of it under this
Agreement, Agent and its employees, officers, and trustees agree that they
shall not at any time thereafter the execution of this Agreement divulge
to any person or entity any confidential information received by them
during or after the term of this Agreement with regard to the personal,
financial, or other affairs of Principal(s), and all such information
shall be kept confidential and shall not in any manner be revealed to
anyone. Confidential information shall encompass any and all documents or
information expressly marked as “Confidential”; any and all records or
documents related to finance; any and all records or documents related to
corporate organization; and any and all communications transmitted to
Agent by the President of Principal that is not already in the public
domain. Agent further hereby expressly covenants and agrees that it shall
not at any time during or after termination of this Agreement reveal,
divulge or make known to any person any confidential information of
Principal, or reveal, divulge, or make known to any person of any secret
or confidential information whatsoever in connection with Principal or its
business or anything connected therewith, or solicit, interfere with, or
endeavor to entice away from Principal any customer or any person in the
habit of dealing with Principal, or interfere with or entice away any
other employee of Principal, and Principal may apply for and have an
injunction restraining the breach or the threatened breach of any of the
covenants hereof.
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8.
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Confidentiality. In the
event that a separate confidentiality or non-disclosure agreement has been
executed by the undersigned parties, either prior to or subsequent to the
execution of this Agreement, the terms of that separate confidentiality or
non-disclosure agreement shall govern. If no separate confidentiality or
non-disclosure agreement exists, then this covenant shall apply. All
communications, written or oral, made between the parties during the
course and scope of this Agreement shall be held in strictest confidence
and may not be disclosed to any person or entity that is not a party to
this agreement. The undersigned parties may disclose said confidential
information to their shareholders, directors, officers, employees,
associates, agents, or independent contractors of the corporate entities
that the undersigned represent if and only if those
parties have duly executed a general confidentiality agreement with the
corporate entity. Otherwise, disclosure of confidential information
arising from this Agreement to such parties shall be strictly prohibited.
This confidentiality clause shall survive the term of this
Agreement.
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9.
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Covenant Not to Compete in
North America, Hong Kong, or the Republic of Philippines. In
consideration for this Agreement and inducement to Principal to enter into
this business relationship, Agent agrees acknowledges, represents, and
warrants that neither it nor any of its shareholders, directors, officers,
agents, or associates, personally or through Agent shall directly compete
against Principal in North America, Hong Kong, or the Republic of
Philippines for the duration of this Agreement and, additionally, two
years after the termination of this Agreement. The parties further agree
that the only way to fairly compensate Principal for any breaches of this
covenant is through payment of liquidated damages. The parties agree that
for each oral or written disclosure to private individuals or entities,
Principal will sustain harm equivalent to the sum of $10,000.00 USD per
disclosure and for each publication, online or in print, Principal will
sustain harm equivalent to the sum of $100,000.00 USD for each
publication. In the event of breach, Agent shall be liable for these sums
pursuant to this liquidated damages clause and furthermore, shall be
liable for any attorney’s fees or court costs incurred by Principal in
pursuing recovery of the liquidated damages. The individual shareholders,
directors, officers, agents, or associates of Agent shall be bound
collectively as Agent under this Agreement and the undersigned represents
and warrants that he or she is duly authorized to represent the
aforementioned parties.
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10.
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Principal’s Damages in Event of
Breach. In the event of a breach of this Agreement by Agent
resulting in damages to Principal, Principal may recover from Agent any
and all damages as may be sustained, including but not limited to loss of
opportunity, loss of business, loss of foreseeable profits in spite of
Principal being a start-up, reasonable compensation for loss of time,
reasonable attorney’s fees, any difference in costs sustained by Principal
in retaining a new agent to replace Agent, and any and all incidental and
consequential damages that may
arise.
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11.
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Agent Representations and
Warranties. Agent hereby represents and warrants to Principal
that:
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a.
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Authority and Personal
Guaranty. Agent is a legally existing entity with the authority to
enter into this Agreement. The undersigned party on behalf of Agent hereby
represents and warrants that he or she has been duly authorized by its
corporate entity or principal to enter into this Agreement and to bind
that corporate entity or principal to the terms hereof, and that in any
event that Principal is unable to recover from Agent for any reason
whatsoever, that the undersigned individual on behalf of Agent shall be
held personally liable for Agent’s failures, breaching acts, and/or
omissions.
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b.
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Compliance with Law.
Agent and its employees, trustees, and associates warrant that they have
complied and will comply fully with all applicable laws, regulations,
statutes, and ordinances, and that they shall make themselves familiar and
fully up to date on Philippine laws, codes, and regulations as pertaining
to mining operations, and that at all times Agent shall comply with said
laws, codes, and regulations.
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12.
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Right to Adequate
Assurance. Principal reserves the right to request adequate
assurance of future performance of obligations arising from this Agreement
if there are reasonable grounds for insecurity, or grounds for Principal
to believe that Agent may breach the Agreement, or that Agent may be
unable to perform the terms as set forth in the Agreement. To exercise
this right, Principal must request adequate assurance in writing and Agent
must be given at least 10 business days to respond, from the date that the
request is sent. If no response is timely received, then the parties
hereby agree and acknowledge that such non-response or silence shall be
deemed as Agent’s anticipatory repudiation of the Agreement, entitling
Principal to claim damages for total breach. In the event that Principal
prevails on its claims pursuant to this clause, Agent shall be liable for
Principal’s court costs and attorney’s
fees.
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13.
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No Waiver or Cumulative
Remedies. No failure or delay on the part of any undersigned party
to this Agreement in exercising any right, power or remedy hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of
any such right, power or remedy preclude any other or further exercise
thereof or the exercise of any other right, power or remedy hereunder. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
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14.
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Prohibition Against
Assignment. Unless the undersigned parties mutually agree to
subsequently modify this covenant in writing, Agent shall not assign,
transfer, convey, or dispose of its rights, title or interest in this
Agreement. This Agreement and any and all subsequent obligations arising
therefrom shall be non-assignable unless the parties agree to other
arrangements, which must be memorialized in
writing.
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15.
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No Third Parties Without
Written Approval. Unless otherwise provided for in writing and
signed and acknowledged by both parties, there shall be no third party
beneficiaries to this Agreement. This Agreement is non-assignable,
non-transferrable, and the duties that the undersigned parties are obliged
to perform are non-delegable unless otherwise provided for in writing and
signed and acknowledged by both
parties.
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16.
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Enurement. This
Agreement shall enure to the benefit of and be binding upon the parties
hereto and their respective successors and
assigns.
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17.
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Merger and Integration.
This Agreement and the exhibits attached hereto contain the entire
agreement of the parties with respect to the subject matter of this
Agreement, and supersede all prior negotiations, agreements and
understandings with respect thereto. This Agreement may only be amended by
a written document duly executed by the undersigned
parties.
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18.
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General Indemnification.
Agent hereby agrees to indemnify and hold harmless Principal against loss
or threatened loss or expense by reason of the liability or potential
liability of Principal for or arising out of any claims for damages,
including payment and compensation for reasonably-incurred attorney’s fees
and other related professional
fees.
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19.
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Good Faith and Best
Efforts. Agent hereby agrees to fully perform this Agreement in
good faith and exercise its best efforts in carrying forth the terms of
this Agreement. “Good faith” shall be defined as a state of mind
consisting in (1) honesty in belief or purpose, (2) faithfulness to one’s
duty or obligation, (3) observance of reasonable commercial standards of
fair dealing in a given trade or business, and/or (4) absence of intent to
defraud or to seek unconscionable advantage. “Best efforts” shall be
defined as a binding duty to use best efforts to accomplish any given
goal, to make every available effort to do so, regardless of the harm to
the bound party. The parties further agree that there are no conflicts
between Agent’s duty to perform in good faith and duty to exercise best
efforts.
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20.
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Force Majeure. In the
event of unforeseen disasters, events, or conditions that the parties were
not able to contemplate at the execution of this Agreement, such as
sabotage, riots, terrorism, political or governmental complications,
market conditions, or natural occurrences such as hurricanes, floods,
earthquakes, etc. or other Acts of God, liability shall be borne by Agent
only.
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21.
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22.
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Service of Summons. In
the event that a cause of action or suit arises from this Agreement, the
undersigned parties hereby agree and consent to service of summons at the
following addresses:
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a.
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Principal: Agent for
Service of Process: Xxxxx Xxxxx, 32/F Tower 1, Millennium City, 388 Xxxx
Xxxx Road, Xxxx Xxxx, Kowloon, Hong
Kong.
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b.
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Agent: Agent for Service
of Process: Any full-time employee of Sichuan Dujiangyan Xxxxx Company,
Limited, Building Xx. 00 Xxxxxx Xxxxx, Xxxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxx, Xxxxxxxx of China.
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23.
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Severability. If any
term or provision of this Agreement shall to any extent be invalid or
unenforceable, the remainder of this Agreement shall not be affected
thereby, and each term and provision of this Agreement shall be valid and
enforceable to the fullest extent permitted by
law.
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24.
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Entire Agreement. This
Agreement constitutes the entire agreement to date 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.
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25.
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Counterparts. This
Agreement may be executed in any number of counterparts, all of which
taken together shall constitute one and the same instrument, and any of
the parties hereto may execute this Agreement by signing any such
counterpart.
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26.
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Descriptive Headings.
The headings in this Agreement are for convenience of reference only and
shall not limit or otherwise affect the meaning of terms contained herein.
Unless the context of this Agreement otherwise requires, references to
"hereof," "herein," "hereby," "hereunder" and similar terms shall refer to
this entire Agreement.
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IN
WITNESS WHEREOF, the undersigned parties cause this Agreement to be duly signed
and executed on the date first written above in the preamble of this
document.
SIGNED
AND EXECUTED:
PRINCIPAL:
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AGENT:
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/s/ Xxxxx
Xxxxx
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/s/ Xxxx
Xxx
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Company:
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Oro
East Mining Inc.
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Company:
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Xxxxx
Company, Ltd.
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Xxxxxx’x
Name:
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Danni
Xxxxx
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Xxxxxx’x
Name:
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Xxxx
Xxx
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Position/Title:
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President
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Position/Title:
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President
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Date
Signed:
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September
10, 2010
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Date
Signed:
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September
10, 2010
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Location:
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Location:
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Sichuan,
China
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EXHIBIT
A
Agent
shall have the option to receive Contract Price, $860,000 USD plus 4% interest
per annum, in the form of corresponding shares of the following company, at
$2.00 USD per share:
Oro
East Mining Company, Inc.
00/X
Xxxxx 0, Xxxxxxxxxx Xxxx,
388 Xxxx
Xxxx Road, Xxxx Xxxx, Kowloon,
State
of Incorporation:
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Delaware
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REGISTRATION
WITH U.S. SECURITIES EXCHANGE COMMISSION
FOR
SECURITIES OF SMALL BUSINESS ISSUERS
CIK
Ref. No.:
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0001430174 |
SIC
Ref. No.:
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6770 |