Exhibit 10.1
CONSULTING AGREEMENT WITH
BIG SKY MANAGEMENT LTD.
Big Sky Management Ltd.
▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
February 28, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇ e-Media Holdings, Inc
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ , ▇▇
▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Dear Sirs:
Re: Consulting Agreement
This letter agreement (the "Agreement") sets forth the terms and conditions
under which KS E-Media Holdings, Inc. (the "Company") has retained Big Sky
Management Ltd. ("Big Sky") to serve as the Company's financial consultant in
connection with the Company's organization and financing.
Duties of the Consultant
1. Big Sky will assist the Company in effecting the Company's organization
and financing on terms acceptable to the Company. In this regard, we
propose to undertake certain activities, including, if appropriate, the
following:
(a) assisting the Company in preparing and refining its business plan;
(b) identifying, introducing to, and consulting as to strategy for
initiating discussions with, potential investors; and
(c) assisting in the preparation and review of definitive
documentation in connection with the Company's organization and
financing and coordinating same with your legal counsel and
accountants.
2. It is acknowledged by the Company that neither Big Sky nor any of its
representatives are registered with or licensed by any securities
commission or like authority as an underwriter, broker, dealer or
financial advisor and that the services to be provided by Big Sky to
the Company hereunder shall expressly not include trading in the
Company's securities (either as principal or agent), participating in
63
an offering of the Company's securities which is not exempted or
otherwise in compliance with the requirements of applicable securities
laws, or engaging in or professing to engage in the business of
advising others with respect to a purchase or sale of the Company's
securities.
Consulting Fee
3. Subject to section 4 hereof, Big Sky's compensation for its role as
financial consultant will be the sum of US$1500 per month plus GST
payable of $105 (the "Consulting Fee"). Big Sky and the Company agree
that the Consulting Fee shall be payable to Big Sky, in arrears, from
the date on which this Agreement is accepted by the Company, on the
date on which the Company closes its first offering of securities and
on the 1st day of each month thereafter.
Termination
4. This agreement has no set term of engagement and can be terminated with
30 days notice by either party.. It is expressly understood that the
provisions relating to the payment for the Expenses and the provisions
of the Indemnification Agreement (as those terms are defined herein)
will survive termination of this Agreement or the completion of Big
Sky's services hereunder.
Expenses
5. In addition to the foregoing fees the Company agrees, upon request from
time to time, to promptly reimburse Big Sky for all out-of-pocket
expenses, including, but not limited to, such costs as printing,
telephone, fax, courier service, copying, accommodations and travel and
direct computer expenses, and secretarial overtime ("Expenses").
Provision of Information and Indemnification Agreement
6. In connection with Big Sky's engagement, the Company and its directors,
officers, employees, representatives and agents will furnish Big Sky
with all data, material, and information concerning the Company (the
"Information") which Big Sky reasonably requests, all of which will be
accurate and complete in all material respects at the time furnished.
The Company recognizes and confirms that in undertaking the engagement
contemplated hereby, Big Sky will be using and relying exclusively on
the Information provided by the Company without independent
verification and without performing any appraisal of the assets or
businesses of the Company. Big Sky is hereby authorized to use and
deliver the Information, and any other data obtained by Big Sky from
reliable published sources, in accordance with this Agreement without
limitation. In connection with the engagement of Big Sky hereunder, the
Company has entered into a separate letter agreement (the
"Indemnification Agreement"), dated as of the date hereof, providing
for the indemnification of Big Sky and certain related parties by the
Company.
64
Relationship
7. In the performance of its obligations hereunder Big Sky shall be an
independent contractor of the Company. Big Sky shall perform the
services enumerated herein according to its own means and methods of
work and shall not be subject to the control or supervision of the
Company. The Company acknowledges that nothing in this Agreement shall
be construed to require Big Sky to provide services to the Company at
any specific time or in any specific place or manner.
Miscellaneous
8. This Agreement and the Indemnification Agreement constitute the entire
agreement between us with respect to the subject matter hereof. This
Agreement and Indemnification Agreement shall be governed by and
construed in accordance with the laws of the Province of British
Columbia and the parties hereto irrevocably attorn to the exclusive
jurisdiction of the Courts thereof and the Courts of Appeal therefrom.
Should suit be brought to enforce this Agreement or the Indemnification
Agreement, the prevailing party shall be entitled to recover from the
other reimbursement for reasonable attorneys' fees.
9. No waiver of any of the provisions of this Agreement shall be deemed or
shall constitute a waiver of any other provision hereof and no waiver
shall constitute a continuing waiver. No waiver shall be binding unless
written notice thereof is delivered by the party making the waiver to
the other party.
10. The offer contained herein will expire and be of no further force or
effect unless accepted in writing prior to the close of business on.
Please confirm that the foregoing correctly sets forth our agreement by signing
and returning to us the enclosed duplicate copy of this Agreement together with
the Indemnification Agreement. We look forward to working with you and to the
successful conclusion of this engagement.
Yours very truly,
Big Sky Management Ltd.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------
▇▇▇▇ ▇▇▇▇▇▇▇
President
Accepted and Agreed to as of
the 28th day of February,2002.
KS E- Media Holdings, Inc.
"▇▇▇▇▇ ▇▇▇▇▇▇"
▇▇▇▇▇ ▇▇▇▇▇▇
President
65
Date February 28, 2002
DELIVERED BY COURIER CONFIDENTIAL
BIG SKY MANAGEMENT LTD.
▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇
Gentlemen:
In consideration of the agreement of Big Sky Management Ltd. ("Big Sky") to
provide financial consulting services to KS E-Media Holdings, Inc. (the
"Company"), pursuant to the letter agreement of even date herewith (the
Agreement")), and pursuant to the Agreement, we hereby agree to indemnify and
hold harmless Big Sky, its affiliates, the respective directors, officers,
agents and employees of Big Sky and its affiliates and each person, if any,
controlling Big Sky or any of its affiliates within the meaning of either
Section 15 of the Securities Act of 1933 or Section 20 of the Securities
Exchange Act of 1934, (Big Sky and each such other person are hereinafter
referred to as an "Indemnified Person"), from and against any such losses,
claims, damages, expenses and liabilities (or actions in respect thereof), joint
or several, as they may be incurred (including all legal fees and other expenses
incurred in connection with investigating, preparing, defending, paying,
settling or compromising any claim, action, suit, proceeding, loss, damage,
expense or liability, whether or not in connection with an action in which any
Indemnified Person is a named party) to which any of them may become subject
(including in settlement of any action, suit or proceeding, if such settlement
is effected with the Company's consent, which consent shall not be unreasonably
withheld), and which are related to or arise out of Big Sky's engagement, the
transaction contemplated by such engagement or any Indemnified Person's role in
connection therewith, including, but not limited to, any losses, claims,
damages, expenses and liabilities (or actions in respect thereof) arising out
of, based upon or caused by any untrue statement or alleged untrue statement of
a material fact contained in any document of the Company, or arising out of,
based upon or caused by any omission or alleged omission to state in any of them
a material fact required to be stated therein or necessary to make the
statements in any of them not misleading. The Company will not, however, be
responsible under the foregoing provisions with respect to any loss, claim,
damage, expense or liability to the extent that a court having jurisdiction
shall have determined by a final judgment (not subject to further appeal) that
such loss, claim, damage, expense or liability resulted from actions taken or
omitted to be taken by Big Sky due to its gross negligence or wilful misconduct.
If the indemnity referred to above should be, for any reason whatsoever,
unenforceable, unavailable to or otherwise insufficient to hold harmless Big Sky
and each Indemnified Person in connection with the transaction, each Indemnified
Person shall be entitled to receive from the Company, and the Company shall pay,
contributions for such losses, claims, damages, liabilities and expenses (or
actions in respect thereof) so that each Indemnified Person ultimately bears
only a portion of such losses, claims, damages, liabilities, expenses and
66
actions as is appropriate: (i) to reflect the relative benefits received by Big
Sky on the one hand and the Company on the other hand in connection with the
transaction; or (ii) if the allocation on that basis is not permitted by
applicable law, to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of Big Sky and the Company in connection
with the actions or omissions to act which resulted in such losses, claims,
damages, liabilities or expenses, as well as any other relevant equitable
considerations; provided, however, that in no event shall the aggregate
contribution of all Indemnified Persons to all losses, claims, damages,
liabilities, expenses and actions exceed the amount of the fee actually received
by Big Sky pursuant to the Agreement. The respective relative benefits received
by Big Sky and the Company in connection with the Agreement shall be deemed to
be in the same proportion as the aggregate fee paid to Big Sky in connection
with the Agreement bears to the total consideration received by the Company in
connection with or arising from the Agreement. The relative fault of Big Sky and
the Company shall be determined by reference to, among other things, whether the
actions or omissions to act were by Big Sky or the Company and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such action or omission to act.
The indemnity, contribution and expense payment obligations of the Company
referred to above shall be in addition to any liability which the Company may
otherwise have and shall be binding upon and inure to the benefit of any
successors, assigns, heirs and representatives of any Indemnified Person and the
Company. The Company also agrees that the Indemnified Persons shall have no
liability to the Company or any person asserting claims on behalf of or in right
of the Company for or in connection with any matter referred to in this letter
except to the extent that any such liability results from the gross negligence
or wilful misconduct of Big Sky in performing the services that are the subject
of the Agreement and in no event shall such liability exceed the amount of fees
actually received by Big Sky hereunder.
Yours very truly,
KS E-Media Holdings, Inc.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
President
Accepted and Agreed to as of
the 28th day of February, 2002.
BIG SKY MANAGEMENT LTD.
"▇▇▇▇ ▇▇▇▇▇▇▇"
▇▇▇▇ ▇▇▇▇▇▇▇
President
67
