CONSULTING AGREEMENT
This
Consulting Agreement ,
by and between El Capitan Precious Metals, Inc., a Nevada
corporation (the “
Company ”),
and Charles C. Mottley (the “
Consultant ”)
is entered into as of the 1st day of October, 2007 (the
“
Effective Date ”).
Now,
Therefore ,
for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Company and
Consultant, each intending to be legally bound, hereby agree
as follows:
1.
Consultant Services .
During the term of this Agreement, Consultant shall from time to
time use its best efforts to perform corporate advisory services
for the Company, including without limitation providing services
relating to: (i) strategic advisory services; (ii) corporate
financial planning; (iii) market analysis; (iv) introductions to
potential investors; and (v) other consulting and advisory services
which may in the future be mutually agreed upon by the Company and
Consultant.
The
Company and Consultant hereby acknowledge and agree that: (i)
Consultant is not a “broker” or
“dealer” as defined under any applicable federal
and/or state securities laws; (ii) Consultant shall not engage
in any acts for which he is required to be a broker-dealer;
(iii) Consultant shall solely act to provide advice to the
Company with respect to capital raising and market analysis,
and shall not engage in any sales efforts in connection with
any investment by any person or entity in the Company; (iv)
Consultant shall not participate in any negotiation of the
terms of any such investment; and (v) Consultant shall not
give any advice to anyone regarding the valuation of,
potential return on, or the terms of any investment in, any
securities of the Company, except as authorized by the
Company. Consultant makes no representations, warranties or
guaranties of any specific results or success.
The
Company further acknowledges that the services of Consultant
provided hereunder are not exclusive to the Company, and,
subject to the terms of Section 6 hereof, nothing herein shall
be construed to limit or restrict Consultant or his affiliates
in conducting such business with respect to others or in
rendering such advice to others. Consultant hereby
acknowledges that the Company’s engagement of Consultant
is similarly not exclusive, and the Company is free to obtain
similar services as provided by Consultant from third
parties.
2.
Term .
Subject to earlier termination by the parties in accordance with
the terms of Section 8 hereof, the term of this Agreement shall
commence on the Effective Date and continue until such time that
the Company has paid Consultant an aggregate Consulting Fee of
$300,000 pursuant to the terms of Section 3 hereof (the
“
Term ”).
3.
Compensation .
As consideration for Consultant’s entry into this Agreement
and performance of the consulting services set forth herein, the
Company shall pay Consultant the following compensation (the
“
Consulting Fee ”):
(a)
Base Payment .
The Company shall pay Consultant a one-time payment of $25,000, in
cash, within five (5) days of the first date after the Effective
Date upon which the Company’s cash balance exceeds $250,000
in the aggregate (the “
Base Payment ”);
and
(b)
Monthly Payment. The
Company shall pay Consultant up to an aggregate of $275,000,
payable in monthly installments during the Term, the amount of each
such installment to be based on the Company’s cash
availability as determined by the Company’s average daily
cash balance for the preceding month in accordance with the
following schedule (each a “
Monthly Payment ”):
| |
|
|
Company’s Average Daily Cash
Balance for the Preceding Month
|
| |
|
|
Less than
$250,000
|
|
|
$250,000 to
$500,000
|
|
|
$500,000 to
$1,000,000
|
|
|
Over
$1,000,000
|
|
|
Monthly payment amount
|
|
$
|
2,500
|
|
$
|
5,000
|
|
$
|
7,500
|
|
$
|
10,000
|
|
4.
Reimbursement .
All third-party and out-of-pocket expenses incurred by the
Consultant in performing the consulting services shall be paid by
the Company, or shall be reimbursed by the Company if paid by the
Consultant on behalf of the Company, within ten (10) days of
receipt of written notice by the Consultant, provided that the
Company must approve in advance all such expenses.
5.
Confidentiality .
As a condition to the Company’s obligations hereunder and
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 he may have received, or may receive
in the future, certain confidential forward-looking statements and
information, either written or oral, or other confidential or
non-public information from the Company concerning the Company and
its prospects, including without limitation all financial
statements, reports, memorandums, analyses, notes or other
information that are based on, contain or reflect any information
deemed confidential by the Company (collectively, the
“
Confidential Information ”).
(b)
Consultant shall use the Confidential Information solely for the
purpose of performing the services required to be performed by
Consultant hereunder. Consultant shall keep all Confidential
Information confidential, and shall not disclose any Confidential
Information without the prior written consent of the
Company.
(c)
Following the completion of its engagement by the Company,
Consultant shall promptly return any Confidential Information in
their respective possessions to the Company, without retaining any
copy thereof, and destroy all tangible forms of Confidential
Information prepared by or for internal use which reflect, contain
or embody Confidential Information.
(d)
Consultant hereby acknowledges that he is aware that the securities
laws of the United States prohibit any person who has material
non-public information
|
