CONSULTING AGREEMENT
This
Consulting Agreement made and entered into as of this 4th day of February, 2010,
by and between Xxxxxxx X. Xxxx, Xx. (“Xxxx”) and Future Gas Holdings, Ltd
(“Buyer”).
WHEREAS,
Buyer and JBM Energy Company, LLC (“JBM”) have entered into a Coal Buy and Sell
Agreement, and Buyer and Pace have entered into a Mineral Buy and Sell Agreement
and a Stock Agreement, all such agreements of even date herewith,
NOW,
THEREFORE, as additional consideration for the execution of the aforesaid
Agreements and of the covenants and conditions hereinafter set forth, and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto agree as follows:
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1.
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Pace agrees to provide consulting
services to Buyer concerning the coal property conveyed to Buyer by JBM
and the other minerals conveyed to Buyer by Pace, upon the terms and
conditions hereinafter set forth.
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2.
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Buyer
agrees to pay Pace the following cash payments in U.S.
Dollars:
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a.
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Five
Thousand U.S. Dollars ($5,000) on the first day of the month following the
closing date under the Coal Buy and Sell Agreement, and on the first day
of each following month during the term hereof or until
terminated. For this guaranteed payment each month, Pace agrees
to make himself available to perform consulting services to Buyer five (5)
days during each such month.
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b.
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Buyer
has the option to require Pace to perform consulting services for up to an
additional five (5) days during each month, in which event Buyer agrees to
pay Pace an additional One Thousand U.S. Dollars per day for the
additional services performed.
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c.
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If
Buyer wanted Pace to perform services in excess of ten (10) days per
month, it would be Pace's option as to whether or not to perform such
additional services, and over what additional period of time; if Pace
elected to perform such additional services Pace agrees that Buyer would
pay him only Five Hundred U.S. Dollars ($500) per day for such additional
time.
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3.
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In
addition to the fees for services paid to Pace under paragraph 2 above,
Buyer agrees to reimburse Pace for the following expenses incurred by Pace
in the performance of his consulting
services:
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a.
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All
travel expenses incurred by Pace for travel authorized by Buyer, including
coach airfare and fees, train, rental car or personal car at the rate of
50 cents per mile, taxi, gas, hotel, meals, and other legitimate travel
expenses; and
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b.
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Entertainment
for business purposes if authorized by Buyer;
and
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c.
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An
allowance of Five Hundred U.S. Dollars ($500) per month for office and
secretarial services and expenses, including supplies, telephone, fax,
etc. The $500 allowance shall be paid to Pace on the
first day of each month hereunder.
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d.
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To
support the reimbursement of the expenses under 3.a. and 3.b. above, Pace
will provide Buyer with receipts and documentation to support such
expense. Buyer shall reimburse Pace within ten (10) days
following receipt by Buyer of Pace's billing and
documentation.
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4.
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Buyer
will use its good faith efforts to advise Pace at least two (2) weeks in
advance when Buyer wishes Pace to provide his consulting services and to
travel on Buyer's behalf. Pace agrees to make every good faith
effort to make himself available upon receipt of such 2 weeks notice and
at other times subject to his prior commitments. If Pace gives
Buyer notice of his personal travel plans prior to receiving
Buyer's 2 weeks advance notice, Buyer agrees to respect Pace's personal
travel plans. If Buyer's and Pace's schedules conflict, Pace
agrees to act in utmost good faith in an attempt to resolve the conflict
in Buyer's favor if important Buyer interests are
involved.
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5.
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This
Consulting Agreement shall take effect upon the closing of the Coal Buy
and Sell Agreement and the Mineral Buy and Sell Agreement, and shall
remain in effect for a period of One (1) year thereafter, subject to the
right and option of Pace to extend this Consulting Agreement for two (2)
successive one (1) year terms by giving written notice to Buyer of his
exercise of this option sixty (60) days prior to the expiration of the
initial one (1) year term or of any extended term. Pace's
rights to further compensation under this Consulting agreement shall
terminate however, if the Coal Buy and Sell Agreement is terminated by
either party as authorized under said Coal Buy and Sell
Agreement.
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6.
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BREACH;
REMEDIES
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a.
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Buyer’s
Breach: In the event that Buyer fails to timely pay to
Pace any payment due hereunder, or fails to perform any agreement,
covenant, representation or warranty under this Consulting Agreement, Pace
may at Pace’s option (i) deem this Consulting Agreement terminated, null,
void and of no further force and effect at which time Buyer shall have no
further rights or liabilities under this Consulting Agreement, or (ii)
initiate action for any other remedy at law or in equity permitted under
Montana law including, without limitations, an action for specific
performance.
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x.
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Xxxx'x Breach:
In the event the Pace fails to perform any agreement, covenant,
representation or warranty under this Consulting Agreement, and Buyer is
at that time ready, willing and able to perform all obligations by Buyer
to be performed, Buyer may at Buyer’s option: (i) deem this Consulting
Agreement terminated, null, void and of no further force or effect, at
which time Pace shall have no further rights or liabilities under this
Consulting Agreement, or (ii) initiate action for any other remedy at law
or in equity permitted under Montana law including, without limitation, an
action for specific performance.
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7.
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INTEGRATIONS; SURVIVAL
OF WARRANTIES; AMENDMENT
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Buyer
incorporates into this Consulting Agreement and hereby makes a part hereof
all of the "Representations and Warranties of Buyer on set forth in
paragraph 9 of the Coal Buy and Sell Agreement between Buyer and JBM
Energy Company, LLC of even date herewith. Unless otherwise
agreed in writing, this Consulting Agreement represents the entire
understanding of the parties with respect to the subject matter
referenced, and supersedes all prior understandings and agreements
heretofore made by and between the parties; provided that the
parties’ respective warranties and representations shall survive execution
of this Consulting Agreement. Neither this Consulting Agreement
nor any provision hereof may be amended, waived, modified or discharged
except by an agreement in writing signed by all
parties.
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8.
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ATTORNEY’S
FEES
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In
the event of any litigation to construe and/or enforce the terms of this
Consulting Agreement, the party prevailing in such action shall be
entitled to recover its reasonable attorney’s fees and costs in addition
to any other damages or relief to which such party may be
entitled.
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9.
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FACSIMILE
SIGNATURES
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Both
parties agree that facsimile signatures by any party will be treated as
original signatures for the purpose of this
transaction.
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10.
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NOTICES
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Any
and all notices required under this Consulting Agreement shall be in
writing and shall be served upon the respective parties at the addresses
shown below or to such other address as the parties may designate by
written notice to the other.
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PACE:
BUYER:
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Xxxxxxx
X. Xxxx,
Xx.
Future Gas Holdings,
Ltd
2139
Xxxxx’x Church
Road
X.X. Xxx 000, Xxxx
Xxxxxx
Xxxxxxx,
XX 00000
Charletstown, Nevis
Director:
Xxxxx Xxxx
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Any
notice to be given under this Consulting Agreement shall be sent
by:
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a.
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Certified
mail, return receipt requested, in which case notice shall be deemed
delivered five (5) business days after deposit, postage prepaid in the
United States Mail; or
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b.
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a
nationally recognized overnight courier, in which case notice shall be
deemed delivered three (3) business days after deposit with that
courier.
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11.
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EXECUTION IN
COUNTERPARTS; TELEFACSIMILE
SIGNATURES
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This
Agreement may be executed in multiple counterparts, each of which shall be
deemed an original but all of which shall constitute one and the same
instrument; and the parties may execute copies sent by telefacsimile, and
return signed copies by telefacsimile. Copies signed and
returned by telefacsimile shall be deemed and considered executed
counterparts, but a party executing a copy and transmitting same by
telefacsimile shall promptly mail or overnight to the other parties copies
bearing the transmitting party’s original
signature.
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12.
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TIME IS OF THE
ESSENCE
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Time is of the essence in this
Consulting Agreement.
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13.
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CONFIDENTIALITY
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Pace
and Buyer shall not disclose any terms or provisions of this Consulting
Agreement to any other persons except to professionals who require such
information in the performance of this Consulting Agreement, and both
parties will treat all information disclosed to it as confidential
information and will not make further disclosure to third parties without
the consent of the disclosing
party.
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Executed
as of this 4th day of February, 2010.
PACE: BUYER:
Future Gas Holdings, Ltd
__________________________________________________
Xxxxxxx
X. Xxxx, Xx.Xxxxx Xxxx
IndividuallyDirector
