EXHIBIT 10.1
INVESTMENT ADVISORY AGREEMENT
THIS INVESTMENT ADVISORY AGREEMENT (the "Agreement") is entered into
effective as of the 19th day of October, 2004, by and between Blake Advisors,
LLC, a Minnesota limited liability company with a principal place of business at
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "Consultant"), and E1 Capitan
Precious Metals, Inc., a Nevada corporation with a principal place of business
at ▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "Company").
1. Investment Advisory Services. During the term of this Agreement,
Consultant shall from time to time perform financial and investment advisory
services for the Company, including without limitation providing services and
advice (as applicable) relating to (i) corporate-structuring issues, (ii)
potential acquisitions and dispositions, (iii) corporate financial planning,
(iv) introductions to potential institutional investors, (v) introductions to
brokerage firms, (vi) introductions to potential market makers, and (vii) other
consulting and advisory services which may in the future be mutually agreed upon
by the Company and Consultant.
2. Compensation. As consideration for such services and advice, and the
covenants set forth herein, the Company shall compensate Consultant as follows:
(a) $50,000 payable upon the date hereof, (b) $125,000 payable within 30 days of
the date hereof, and (c) $5,000 per month, payable on the first day of each
calendar month of this Agreement's term as specified in Section 3 below (the
"Monthly Fee"), commencing with the first payment due on November 1, 2004 and
ending with the last payment due on October 1, 2005. In addition, Company shall
deliver to Consultant a warrant to purchase up to 500,000 shares of the
Company's common stock at an exercise price of $.85 per share, having a
five-year term, a cashless-exercise provision and piggyback-registration rights,
all in the form of warrant attached hereto.
3. Term. Unless terminated earlier pursuant to the following sentence,
the term of this Agreement shall last from the date hereof until the close of
business on October 31, 2005. Notwithstanding the foregoing, either party may
terminate this Agreement upon at least 30 days written notice of termination to
Consultant, specifying an effective date for such termination. Upon any early
termination, Consultant shall nonetheless be entitled to all of the compensation
set forth in Section 2 above. This Agreement may be renewed for an additional
one-year term (or such other term) upon mutual agreement of the parties.
4. Confidentiality. As a condition to Consultant's continuing
relationship with the Company as a consultant and financial and investment
advisor, Consultant understands and agrees as follows:
(a) Consultant acknowledges that it may have received, or may
receive in the future, certain confidential forward-looking statements and
information, either written or oral, or other confidential or nonpublic
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 materials
(collectively, the "Notes").
(b) Consultant shall use the Confidential Information solely far the
purpose of performing the services required to be performed by Consultant
hereunder. Consultant, and any representatives and agents of Consultant, shall
keep all Confidential Information confidential, 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 Consultant'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 Consultant 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). Consultant shall be
responsible far any breach of this Agreement by its representatives or agents.
(c) Following the completion of its engagement by the Company,
Consultant and any representatives or agents of Consultant shall promptly return
any Confidential Information in their respective possessions to the Company,
without retaining any copy thereof, and destroy all Notes prepared by or for
internal use which reflect, contain or embody Confidential Information.
(d) Consultant 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.
(e) For the purposes of this Agreement, the definition of
"Confidential Information" shall not include information which (i) had been made
previously available to the public by the Company; (ii) is or becomes generally
available to the public, unless the information being made available to the
public results in a breach of this Agreement; (iii) prior to disclosure to
Consultant or Consultant's representatives or agents, was already rightfully in
any such person's possession or (iv) is obtained by Consultant or Consultant'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 Consultant to refrain from disclosing such information to others.
5. Status of Consultant as Independent Contractor. Using its
commercially reasonable efforts, Consultant shall devote such time to the
performance of the services described in this Agreement as may be necessary to
satisfactorily complete the such services. Consultant 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 Consultant nor its
employees shall participate in any benefit programs available to Company
employees, including without limitation health benefits, life insurance, pension
or profit-sharing plans and paid vacation and sick leave. Consultant shall have
no power to act as an agent of the Company or bind the Company in any respect.
6. Representation and Warranties. Each party represents and warrants to
the other that its respective execution, delivery and. performance of this
Agreement has been approved by all requisite corporate action, and that this
Agreement is a valid and binding agreement enforceable against it in accordance
with the terms hereof.
7. Indemnification. The Company shall indemnify the Consultant and hold
the Consultant harmless from, against and in respect of any and all loss,
liability, expense (including without limitation reasonable expenses of
investigation and reasonable attorneys' fees and expenses in connection with any
action, suit or proceeding brought against such other party) and all actual
damages, including without limitation. all compensatory damages, suffered or
incurred by Consultant (a) by reason of or in connection with any material
breach of a party's representations or warranties, or (b) by reason of or in
connection with the failure of such party to fulfill or perform any covenant,
agreement or obligation required to be performed by such party contained herein,
or (c) or otherwise in connection with this Agreement.
8. Dispute Resolution. The parties will, to the greatest extent
possible, endeavor to resolve any disputes relating to the Agreement through
amicable negotiations. Failing an amicable settlement, any controversy, claim or
dispute arising under or relating to this Agreement, including the existence,
validity, interpretation, performance, termination or breach of this Agreement,
will finally be settled by binding arbitration before a single arbitrator (the
"Arbitration Tribunal") which will be jointly appointed by the parties. The
Arbitration Tribunal shall self administer the arbitration proceedings utilizing
the Commercial Rules of the American Arbitration Association ("AAA"); provided,
however, the AAA shall not be involved in administration of the arbitration. The
arbitrator must be a retired judge of a state or federal court of the United
States or a licensed lawyer with at least five years of corporate or commercial
law experience and have at least an AV rating by Martindale ▇▇▇▇▇▇▇. If the
parties cannot agree on an arbitrator, either party may request the AAA to
appoint an arbitrator which appointment will be final.
The arbitration will be held in. Minneapolis, Minnesota. Each party will
have discovery rights as provided by the Federal Rules of Civil Procedure within
the limits imposed by the arbitrator, provided, however, that all such discovery
will be commenced and concluded within 60 days of the selection of the
arbitrator. It is the intent of the parties that any arbitration will be
concluded as quickly as reasonably practicable. Once commenced, the hearing on
the disputed matters will be held four days a week until concluded, with each
hearing date to begin at 9:00 a.m. and to conclude at 5:00 p.m. The arbitrator
will use all reasonable efforts to issue the final written report containing
award or awards within a period of five business days after closure of the
proceedings. Failure of the arbitrator to meet the time limits of this Section 8
will not be a basis for challenging the award. The Arbitration Tribunal will not
have the authority to award punitive damages to either party. Each party will
bear its own expenses, but the parties will share equally the expenses of the
Arbitration Tribunal. The Arbitration Tribunal shall award attorneys' fees and
other related costs payable by the losing party to the successful party as it
deems equitable. This Agreement will be enforceable, and any arbitration award
will be final and non-appealable, and judgment thereon may be entered in any
court of competent jurisdiction. Notwithstanding the foregoing, claims for
injunctive relief, maybe brought in a state or federal court in the State of
Minnesota.
9. General Provisions.
(a) 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.
(b) The invalidity or unenforceability of one or more provisions of
this Agreement shall not onset 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.
(c) 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, without regard to its conflicts-of-law principles.
(d) 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 ▇▇▇}-i term or condition or the future exercise of
such right.
(e) 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 in the introductory paragraph of this Agreement (or to
such other address as the party shall designate by written notice).
(f) This Agreement may be executed by the parties hereto in
counterparts, each of which when so executed and delivered shall be an original,
but all such counterparts shall together constitute but one and the same
instrument. Signatures delivered by facsimile or other means of electronic
communication shall be valid and binding to the same extent as original
signatures
IN WITNESS WHEREOF, the undersigned have executed this Investment Advisory
Agreement to be effective as of the date first written above.
CONSULTANT:
BLAKE ADVISORS, LLC
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇, President
COMPANY:
EL CAPITAN PRECIOUS METALS, INC.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President