EXHIBIT 10.3
CONSULTING SERVICES AGREEMENT
THIS AGREEMENT is made as of the 1st day of November 2003.
BETWEEN:
Yukon Gold Corporation, Inc. a corporation incorporated under the laws of
the State of Delaware.
(herein called the "Corporation") Party of the First Part
- and -
MEDALLION CAPITAL CORP., of the City of Toronto, in the Province of
Ontario, a corporation incorporated under the laws of the Province of
Ontario, Canada.
(herein called "Consultant") Party of the Second Part
RECITALS:
A. The Corporation wishes to engage the Consultant to assist the Corporation
to advance their business and raise, on a best efforts basis, capital for
the Corporation.
B. 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:
1. DEFINITIONS
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.
"TERM" means the period commencing November 1, 2003and 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.
(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.
(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, judgement, 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.
3. ENGAGEMENT OF THE CONSULTANTS
The Corporation hereby engages the Consultant for the Term to perform the
following services:
(a) prepare all necessary documents and other information required by
the SEC and the NASD for listing of the shares;
(b) complete a due diligence and valuation review of the Corporation
sufficient to take the Corporation public;
(c) carrying out the reorganization of the share capital of the
Corporation; (d) advise the Corporation; regarding financial
planning, corporate development; (e) prepare or cause to be prepared
a Business Plan for the Corporation and other IR and PR material;
(f) prepare agreements for financing and other contracts for the
advancement of the Corporation and obtain the Corporation's legal
council approval of such agreements or contracts prior to execution
by the Corporation;
(g) Carry out management, corporate record keeping and the formation for
the advancement of the Corporation.
4. COMPENSATION
(a) As compensation for the services to be provided by the Consultant
hereunder, the Corporation agrees to pay the Consultant $10,000 per
month during the first three (3) months of the Term after which the
Consultant and the Board of Directors shall review the compensation;
(b) The Consultant shall be entitled to receive a commission, of 10%
from the Corporation as a percentage of monies raised through any
offering of securities or debt instrument during the term of this;
(c) Fees and commissions set out in (b) and (c) above shall be payable
on any amounts received by the Corporation from parties introduced
or negotiated with by the Consultant during the Term and that are
received by the Corporation within one year after the termination of
this Agreement provided any sub agents involved in any financing
shall be paid by the Consultant.
5. EXPENSES
The Corporation will reimburse the Consultant for all reasonable
expenses actually incurred and paid by the Consultant to third parties
during the Term in the performance of the Consultant's services under this
Agreement, upon presentation of expense statements and receipts or such
other supporting documentation as the Corporation may reasonably require.
The Consultant agrees to limit the total of these expenses to $500.00 per
month without the prior written consent of the Corporation.
6. 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.
7. NATURE OF RELATIONSHIP
The parties acknowledge and agree, solely with respect to the rights
and obligations of the Consultant under this Agreement, as follows:
(a) the relationship of the Consultant to the Corporation is that of
independent contractors;
(b) the Consultant are not employees or agents of the Corporation; and
(c) the Corporation and the Consultant are not partners or joint
venturers with each other.
8. NO CONFLICTS OF INTEREST
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.
9. NO USE OF CONFIDENTIAL INFORMATION
During and at all times after the Term, the Consultant will keep
confidential all Confidential Information and will not use for the benefit
of the Consultant 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.
The foregoing prohibition will not apply to any Confidential
Information if:
(a) the Confidential Information is available to the public or in the
public domain at the time of disclosure or use, or:
(b) 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
(c) disclosure is made with the Corporation's prior written approval.
10. NO AUTHORITY TO BIND THE CORPORATION
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.
11. TERM AND TERMINATION
The Term of this Agreement shall be one (1) year(s) and shall
automatically renew from year to year unless terminated.
Either party may terminate this Agreement at anytime on 30 days
written notice subject to the provision of Section 6 hereof.
12. INDEMNIFICATION
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) The Consultant acted honestly and in good faith with a view to the
best interests of the Corporation; and
(b) 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.
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.
13. 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
Yukon Gold Corporation, Inc.
c/o: Nuinsco Resources Limited
940 The East Mall
Toronto, Ontario M9B 6J7
Attn: W. Warren Holmes
Phone: 416-626-0470
Fax: 416-626-0890
(b) IF TO THE CONSULTANT
Medallion Capital Corporation
347 Bay Street, Suite 408
Toronto, Ontario M5H 2R7
ATT: Stafford Kelley
Phone: 416-865-9790
Fax: 416-865-1250
and will be deemed to be properly given or made on the earliest of the
following:
(a) actual delivery
(b) 48 hours after being sent by commercial courier service; and
(c) the day following which any telegram or telecopier message is sent.
Notice of change of address for the purpose of notice will also be
governed by this section.
14. ASSIGNMENT
This Agreement may not be assigned by any party, without the prior
written consent of the other parties.
15. HEADINGS
The inclusion of headings in this Agreement is for convenience of
reference only and is not to affect construction or interpretation.
16. INVALIDITY OF PROVISIONS
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.
17. 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.
18. 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.
19. CURRENCY
All amounts in this Agreement are stated and will be paid in
Canadian currency.
20. 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.
YUKON GOLD CORPORATION, INC. MEDALLION CAPITAL CORP.
BY: /s/ Warren Holmes BY: /s/ Stafford Kelley
TITLE: Chairman & CFO TITLE: President