EXHIBIT 10.13
-------------
ADVISORY AGREEMENT
This Advisory Agreement dated as of this 26th day of March, 2006 (the
"Effective Date") by and between Saddle River Associates, Inc with its principal
address at_400 Xxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxx Xxxx 00000
("Advisor") and Empire Gold Corp., a Nevada corporation, having a place of
business 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx XX 00000 ("Client").
WHEREAS, Advisor has experience in advising corporations with respect to
various business matters;
WHEREAS, Client desires to retain Advisor to provide the services described
herein to Client.
NOW THEREFORE, in consideration of the mutual premises and for other good
and valuable consideration and intending to be legally bound, the parties hereby
agree as follows:
1. Client hereby retains Advisor to render advice to Client relating to
locating and evaluating (a) financing alternatives, (b) corporate
structuring and (c) other business issues and planning with which
Client may request the advice of Advisor from time to time in writing.
2. Advisor hereby accepts the retention by Client pursuant to the terms
of this Agreement.
3. Time, Place and Manner of Performance The services rendered by the
Advisor hereunder shall consist of consultations with management of
the Client which consultations management may from time to time
require during the term of this Agreement, provided that the Advisor
shall not be required to undertake duties not reasonably within the
scope of the financial advisory or investment banking services
contemplated by this Agreement. It is understood and acknowledged by
the parties that the value of the Advisor's advice is not readily
quantifiable, and that the Advisor shall be obligated to render advice
upon the request of the Client, in good faith, but shall not be
obligated to spend any specific amount of time so doing. Therefore the
time, place and manner of performance of the services hereunder,
including the amount of time to be allocated by the Advisor is to be
determined in the sole discretion of the Advisor. The Advisor shall
not be obligated to provide the Company with written reports.
4. Term. Subject to early termination for breach, this Agreement shall
commence on the Effective Date and terminate on the one (1) year
Page 1 of 4
anniversary thereof (the "Term"). The Term shall automatically be
extended from year to year unless terminated by a party upon ninety
(90) days prior written notice to the non-terminating party.
5 Fees. Advisor's fee shall be $ 180,000.00 per annum payable by Client
in installments of $15,000.00 per month ("Installments") by certified
check or wire transfer.
6. Costs and Expenses. The Client shall reimburse Advisor in a timely
manner for all out of pocket costs related to the services to be
provided as described herein, provided however, that Advisor shall not
incur any expense in excess of $ 3,000.00 without Client's prior
written approval.
7. Nonexclusivity of this Agreement. The Client expressly understands and
agrees that the Advisor shall not be prevented or barred from
rendering services of the same nature as, or a similar nature to,
those described herein, or of any nature whatsoever, for or on behalf
of any person, firm, corporation or entity other than the Client. The
Advisor understands and agrees that the Client shall not be prevented
or barred from retaining other persons or entities to provide services
of the same nature or similar nature as those described herein or of
any nature whatsoever.
8. Additional Transactions. In the event the Advisor originates any
transaction for the benefit of the Client including a line of credit,
a merger, acquisition or financing, a joint venture partner the Client
and the Advisor will mutually agree on a satisfactory fee and the
terms of payment of such fee
9. Reliance. In performing its services, Advisor shall rely on all data,
material and other information furnished to Advisor by Client. Client
acknowledges and agrees that Advisor, in performing its services to
Client under this Agreement, may rely upon such information without
independently verifying its accuracy, completeness or veracity.
10. Disclaimer of Responsibility for Acts of the Client. The obligations
of the Advisor described in this Agreement consist solely of the
furnishing of information and advice to the Client. In no event shall
the Advisor be required by this Agreement to act as the agent of the
Client or otherwise to represent or make decisions for the Client. All
final decisions with respect to acts of the Client, its subsidiaries
or its affiliates, whether or not made pursuant to or in reliance on
information or advice furnished by the Advisor hereunder, shall be
those of the Client or such subsidiaries or affiliates and the Advisor
shall under no circumstances be liable for any expense incurred or
loss suffered by the Client as a consequence of such decisions. Since
the Advisor will be acting on behalf of the Client in connection with
its engagement hereunder, the Client and the Advisor have entered into
Page 2 of 4
a separate indemnification agreement substantially in the form
attached hereto as Exhibit A and dated the date hereof, providing for
the indemnification of the Advisor by the Client. The Advisor has
entered into this Agreement in reliance on the indemnities set forth
in such indemnification agreement.
Indemnification. Each of the parties hereto (the "Indemnifying Party")
hereby agrees that it will indemnify and hold harmless the other party
and such other party's directors, officers, shareholders, employees or
representatives (the "Indemnified Party") from and against any and all
loss, claim, damage, liability, cost or expense whatsoever, including
legal fees and expenses arising out of or based upon: (i) a breach of
this Agreement by the Indemnifying Party, or (ii) any violation of law
by the Indemnifying Party. Notwithstanding the foregoing provisions of
this paragraph, any amount included or paid by the Indemnifying Party
that has been determined by a court of competent jurisdiction to have
been the direct result of the gross negligence, bad faith or willful
malfeasance of Indemnified Party or any of its direct employees will
be reimbursed by the Indemnified Party to the Indemnifying Party
immediately. Promptly after receipt of notice by the Indemnified Party
of the commencement of any claim or action made against the
Indemnified Party in which Indemnified Party or any of its employees
have been named, the Indemnified Party shall notify the Indemnifying
Party and the Indemnifying Party shall assume the defense thereof with
counsel reasonably satisfactory to Indemnified Party. Notwithstanding
the foregoing, the Indemnified Party shall have the exclusive right,
if it shall reasonably conclude that there may be one or more defenses
available to it that are different or additional to those available to
and employed by the Indemnifying Party, to appoint such other and
separate legal counsel as Indemnified Party deems appropriate, and the
Indemnifying Party shall pay such reasonable legal costs and expenses;
provided that the Indemnifying Party shall not be responsible for the
payment of the costs and expenses of more than one separate counsel.
The Indemnifying Party further agrees that it will not, without prior
written notice, consent to settle, compromise or agree to the entry of
any judgment, unless such settlement, compromise or agreement includes
an unconditional, irrevocable release of Indemnified Party and each
director, officer, shareholder, employee or representative, from and
against any and all liability arising out of said legal action.
This provision shall survive the termination of this Agreement.
11. Confidentiality. The Advisor will not disclose to any other person,
firm, or corporation, nor use for its own benefit, during or after the
term of this Agreement, any trade secrets or other information
designated as confidential by the Client which is acquired by the
Advisor in the course of performing services hereunder. (A trade
secret is information not generally known to the trade which gives the
Client an advantage over its competitors. Trade secrets can include,
by way of example, products or services under development,
Page 3 of 4
production methods and processes, sources of supply, customer lists
and marketing plans.) Any information, which (i) at or prior to the
time of disclosure by the Client to the Advisor was generally
available to the public through no breach of this Agreement, (ii)
was available to the public on a nonconfidential basis prior to its
disclosure by the Client to the Advisor or (iii) was made available
to the public from a third party provided that such party did not
obtain or disseminate such information in breach of any legal
obligation of the Advisor shall not be deemed confidential
information of the Client for purposes hereof
12. Entire Agreement and Governing Law. This Agreement represents the
entire agreement of the parties and may not be amended or modified
except in writing, and shall be governed by and construed in
accordance with the laws of the State of New York, without regard to
the conflicts of law provisions thereof.
13. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be an original and when together
shall be one and the same document.
14. Survival. Paragraphs 10, 11 and 12 shall survive termination of this
Agreement.
IN WITNESS WHEREOF, an authorized representative of each of the parties
have executed this Advisory Agreement as of the Effective Date.
Advisor:
Saddle River Associates, Inc.
By /s/
------------------------------------------
Name:
Title: Pres.
Empire Gold Corp.
By: /s/ Pini Xxxxxxx
------------------------------------------
Name: Pini Xxxxxxx
Title: President & CEO
Page 4 of 4
