MANAGEMENT SERVICES AGREEMENT
Exhibit
10.2
This
MANAGEMENT
SERVICES AGREEMENT (the
“Agreement”) is
entered into as of the 11th day of April, 2005, by and between Hawk Precious
Minerals Inc. (“Hawk”) and
Wits
Basin Precious Minerals Inc., a
Minnesota corporation (the “Company”).
WHEREAS, the
Company and Hawk wish to enter into an agreement providing for the rendering by
Hawk of management services in the future to the Company.
FURTHERMORE, the
Company acknowledges that X. Xxxxx White is an officer and director of both the
Company and Hawk, concurrent with the execution of this Agreement.
NOW,
THEREFORE, for good
and valuable consideration, the receipt of which is hereby acknowledged, the
parties agree as follows:
1. Management
Services. During the term of this
Agreement, Hawk shall from time to time perform certain management and
administrative services for the Company, as well as other consulting services
which may in the future be mutually agreed upon by the Company and Hawk.
Compensation. As
consideration for such services and as consideration for Hawk’s agreements set
forth in this Agreement, the Company shall pay Hawk US$50,000, divided into two
equal installments.
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3. |
Term;
Termination Provisions. |
3.1 Term. Unless
terminated earlier by the Company pursuant to Section 3.2 hereof, the term of
this Agreement shall be for a period of one (1) year from the date hereof.
3.2 Termination
by the Company. On the
10th month anniversary hereof, either the Company or Hawk may elect to terminate
this Agreement upon written notice to the other.
4. Confidentiality
Obligations. As a condition to Hawk’s
continuing relationship with the Company under this agreement, Hawk understands
and agrees as follows:
4.1 Hawk
hereby acknowledges that it may have received, or may receive in the future,
certain confidential forward-looking statements, either written or oral, or
other confidential or non-public information from the Company concerning the
prospects of the Company (collectively, the “Confidential Information”). The
term “Confidential Information” shall also include all reports, analyses, notes
or other information that are based on, contain or reflect any Evaluation
Material (“Notes”).
4.2 Hawk
shall use the Confidential Information solely for the purpose of performing the
services required to be performed by Hawk hereunder. Hawk, and any
representatives and agents of Hawk, shall keep all Confidential Information
confidential by Hawk, and shall not disclose any Confidential Information
without the prior written consent of the Company; provided,
however, that
any of such information may be disclosed to Hawk’s representatives or agents who
need to know such information for the purpose of performing such services
required to be performed hereunder (it being understood that Hawk shall inform
such representatives and agents of the confidential nature of the Confidential
Information and shall direct such representatives and agents to treat such
information confidentially). Hawk shall be responsible for any breach of this
Agreement by its representatives or agents.
4.3 Following
the completion of its engagement by the Company, Hawk and any representatives or
agents of Hawk shall promptly return any Confidential Information in their
respective possessions to the Company, without retaining any copy thereof, and
destroy all analyses, compilations, studies or other documents prepared by or
for internal use which reflect, contain or embody Confidential
Information.
4.4 Hawk
hereby acknowledges that it is aware, that the securities laws of the United
States prohibit any person who has material, non-public information concerning
the Company or a possible transaction involving the Company from purchasing or
selling securities in reliance upon such information or from communicating such
information to any other person or entity under circumstances in which it is
reasonably foreseeable that such person or entity is likely to purchase or sell
such securities in reliance upon such information.
4.5 Hawk
acknowledges and agrees that a violation of the terms of this Agreement would
cause irreparable harm to the Company, and that the Company's remedy at law for
any such violation would be inadequate. In recognition of the foregoing, Hawk
agrees that, in addition to any other relief afforded by law, including damages
sustained by a breach of this Agreement and without any necessity of proof of
actual damage, the Company 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 Hawk and the Company that
both damages and injunctions shall be proper modes of relief and are not to be
considered as alternative remedies.
4.6 For the
purposes of this Agreement, the definition of “Confidential Information” shall
not include information which (a) had been made previously available to the
public by the Company; (b) is or becomes generally available to the public,
unless the information being made available to the public results in a breach of
this Agreement; (c) prior to disclosure to Hawk or Hawk’s representatives or
agents, was already rightfully in any such person's possession or (d) is
obtained by Hawk or Hawk’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 the Company, with respect to such
information and who does not require Hawk to refrain from disclosing such
information to others.
5. Status
of Hawk as Independent Contractor.
5.1 Using its
best efforts, Hawk shall devote such time to the performance of the services
described in this Agreement as may be necessary to satisfactorily complete such
services.
5.2 Hawk
shall be an independent contractor in the performance of this Agreement, and
shall not be deemed an employee of the Company for any purpose whatsoever.
Neither Hawk nor any employees of Hawk shall participate in any benefit programs
for the Company employees, including without limitation health benefits, life
insurance, pension or profit sharing plans and paid vacation and sick
leave.
6. Remedies
and Enforcement. The obligations of Hawk
contained Section 3 shall not be excused by any conduct of the Company. Hawk
acknowledges that any breach or threatened breach of the provisions of any of
Section 3 would result in irreparable harm, which may not be adequately
compensated for by monetary damages. Accordingly, in addition to any other
rights the Company may have at law or in equity, the Company may obtain an
injunction against the breach or continued breach of such provision. If the
Company brings any action to enforce this Agreement, the Court shall, in
addition, to any legal or equitable relief award by the court, award the Company
its reasonable attorneys fees and expenses.
7. Miscellaneous.
7.1 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.
7.2 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.
7.3 Construction. 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.
7.4 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.
7.5 Assignment. Hawk may not assign or
subcontract his rights or obligations under this Agreement without the prior
written consent of the Company. The Company may assign its rights to any
affiliated entity.
7.6 Notices. Any notice to be given
shall be sufficiently given when received, and, if mailed, shall be deemed
received three (3) business days after the date of mailing if sent by certified
mail, postage prepaid, to the address of the party set forth below (or to such
other address as the party shall designate by written notice).
| 7.7 If to the Company, to: | Wits Basin Precious Minerals Inc. | ||
| 00 Xxxxx 0xx Xxxxxx, Xxxxx 000 | |||
| Xxxxxxxxxxx XX 00000 | |||
| Attention: Chief Executive Officer | |||
| If to Hawk: | Hawk Precious Minerals Inc. | ||
|
000-000
Xxx Xxxxxx |
|||
|
Xxxxxxx,
XX X0X 0X0 |
IN
WITNESS WHEREOF, the
undersigned have executed this Agreement the day and year first above written.
| WITS BASIN PRECIOUS MINERALS INC. | ||
| |
|
|
| By: | /s/ Xxxx X. Xxxxx | |
|
Its: CFO | ||
| HAWK PRECIOUS MINERALS INC. | ||
| |
|
|
| By: | X. Xxxxx White | |
|
Its: President and CEO | ||
