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EXHIBIT 10.1
CONSULTING AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into effective as of
the 16th day of June, 1997 by and between Leading Edge Earth Products, Inc., an
Oregon corporation ("Company") with offices located at 000 Xxxxxxxxx Xxxxxx,
Xxxxx 000, Xxxxxxx, XX 00000 and Jasari International, Inc. ("Consultant") a
Belize Corporation. Hereinafter either party may be referred to as "Party" and
collectively as "Parties".
RECITALS:
WHEREAS, Company's primary business activity is to develop, manufacture
and commercialize its proprietary technology for cost/performance effective
building systems, and
WHEREAS, Company desires to develop business opportunities or strategic
partnership/relationships abroad; and
WHEREAS, Consultant desires to introduce Company to such relationship
opportunities.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth and other good and valuable consideration, the receipt of
which is hereby acknowledged, the parties agree as follows:
ARTICLE I
CONSULTING
1.1 Description.
Company hereby retains Consultant to perform, and Consultant hereby agrees to
perform, consulting services to Company as herein provided.
1.2 Services to be Performed.
Consultant will (a) introduce Company to foreign opportunities and (b) assist
Company in obtaining executed confidentiality agreements in a form satisfactory
to Company from such opportunities.
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1.3 Representations of Consultant.
As an inducement to, and to obtain the reliance of LEEP in connection with the
sale of the shares of Common Stock, Consultant represents and warrants as
follows:
a. Consultant is a corporation organized under the jurisdiction of Belize.
b. All corporate and other proceedings required to be taken by or on part of
Consultant to authorize Consultant to enter into and carry out this
Agreement and to acquire the shares of Common Stock hereunder have been
or, prior to the Closing will be, duly authorized and properly taken.
This Agreement has been duly executed and delivered by Consultant and is
valid and enforceable against it in accordance with its terms, subject to
laws of general application relating to bankruptcy, insolvency and the
relief of debtors and the rules of law governing specific performance,
injunctive relief and other equitable remedies. Consultant has the
capacity in all respects to carry out the services provided herein which
are the consideration for shares; the services provided for said shares
shall be at equivalent fair market value for the shares to be exchanged
at $.40/share for current services, and for such valuation as may be
mutually agreed for services in addition to those agreed.
c. Consultant is not a "U.S. Person" as defined in Regulation S promulgated
under the Securities Act of 1933, as amended, by the Securities and
Exchange Commission in that Consultant is not:
(i) a natural person resident in the United States;
(ii) a partnership or corporation organized or incorporated under the
laws of the United States;
(iii) an estate of which any executor or administrator is a U.S. Person;
(iv) a trust of which any trustee is a U.S. Person;
(v) an agency or branch of a foreign entity located in the United
States;
(vi) a non-discretionary account or similar account (other than an
estate or trust) held by a dealer or other fiduciary organized or
incorporated in the United States; and
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(vii) a partnership or corporation organized or incorporate under the
laws of any foreign jurisdiction formed by a U.S. Person
principally for the purpose of investing in securities not
registered under the Securities Act.
d. At all relevant times related to the negotiation, offer and sale of the
shares of Common Stock hereunder, Consultant was outside the United
States.
e. Consultant acknowledges that the Common Stock is subject to a
"restricted period" during which the Common Stock may not offered or
resold to or for the benefit of any U.S. Person, and that after the
expiration of the restricted period the Common Stock may be resold in
the United States or to U.S. persons without other restrictions,
providing an exemption from the registration requirements of the
Securities Act is available.
f. Consultant agrees that any offer or sale of the Common Stock prior to
the expiration of the "restricted period" will be made in accordance
with the provisions of Regulation S; and all offering materials and
documents used in connection with offers and sales of the Common Stock
prior to the expiration of the restricted period must include statements
to the effect that the Common Stock has not been registered under the
Securities Act and may not be sold in the United States or to U.S.
Persons unless the securities are registered under the Securities Act,
or an exemption from the registration requirements of the Securities Act
is available.
g. Consultant agrees that it is acting as a principal and that it or its
affiliates are not acquiring the shares hereunder with a purpose to
distributing said shares without registration or in an attempt to avoid
the registration requirements of the U.S. Securities laws or any other
applicable jurisdictions.
h. Consultant represents that it is a sophisticated corporation with
respect to investment transactions, and has had the opportunity to
review all Reports of the Company which are required to be filed under
the Exchange Act of 1934, and to ask questions with respect thereof; in
addition, Consultant represents that it is an "accredited investor" as
defined by Regulation D promulgated under the Securities Act of 1933.
Consultant further represents that it became aware of this investment
opportunity through a private introduction by related persons and that
it did not become aware of said opportunity through a general
solicitation of any form whatsoever.
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1.4 Independent Contractor.
Consultant acknowledges that Consultant's retention does not confer upon
Consultant any personal claim upon any license, right, product of Company, nor
does this Agreement confer any employment right on Consultant. Consultant agrees
that in performing its duties under this Agreement, it shall be operating as a
foreign independent contractor. Nothing contained herein shall in any way
constitute any association, partnership, employer/employee relationship, or
joint venture between the parties hereto, or be construed to evidence the
intention of the parties to establish any such relationship. Neither party shall
have any right, power or authority to make any representation nor to assume or
create any obligation, whether express or implied, on behalf of the other, or to
bind the other party in any manner whatsoever. Both of the parties agree,
respectively, that they shall not hold themselves out in any manner that would
be contrary to the terms of this Paragraph 1.4
1.5 Confidentiality and Non-Disclosure.
Consultant acknowledges that in the performance of services under this
Agreement, he may acquire confidential information concerning Company
technology, know-how, product plans and specifications, records, business
concepts, financial matters and other information which are valuable, special
and unique assets of Company (herein "Information"). Consultant will not, during
or after the term of this Agreement, disclose any Information, no matter how
acquired, to any person or entity for any reason or purpose outside of Company's
usual business activities as defined hereunder, and will not in any manner
directly or indirectly aid or be a party to any acts, the effects of which would
tend to divert, diminish or prejudice the technology, good will, business or
business opportunities of Company. In the event of a threatened breach by
Consultant of the provisions of this paragraph, Company shall be entitled to an
injunction restraining Consultant from disclosing any such information or from
rendering any services to any person or entity to whom any such information has
been disclosed or threatened to be disclosed.
1.5.1 In exchange for Company executing this Agreement and agreeing to
the retention of Consultant's Services by Company, Consultant
does hereby enter into this Covenant of Confidentiality and
acknowledges the adequacy of the consideration to support this
Covenant.
1.5.2 The covenants made by Consultant under Section 1.5 shall survive
the expiration or termination of this Agreement.
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ARTICLE II
TERM OF CONTRACT
2.1 Term.
The term of this Agreement shall be from the effective date hereof until June
15, 1999, except as provided in Article III.
2.2 Termination.
This agreement may be terminated with both parties' mutual consent or by the act
of an arbitrator agreed to by both parties, and such agreement will not be
unreasonably withheld by either party.
ARTICLE III
COMPENSATION
3.1 Compensation.
Consultant by executing this Agreement will be immediately paid Four Hundred
Thousand (400,000) Regulation "S" shares ("Consultant Shares") of Company common
stock. Additional fees may be earned by Consultant and must be paid from
transaction proceeds approved by the Company. Company reserves the right to
cancel this contract within 45 days of the date hereof by notifying Consultant
by US certified mail, and if so exercised all shares are to be returned to the
Company.
3.2 Expenses.
Consultant shall be responsible for the payment of any expenses incurred by
Consultant in the providing of Services hereunder.
3.3 Stock Conditions.
3.3.1 All shares referenced herein as compensation to Consultant are to
be issued in Street Name of Rothschild Group, S.A. and be delivered
to Rothschild Group S.A. at Xxx Xxxxx, Xxxxxx Xxxxxx, X.X. Xxx
X-0000, Xxxxxx Bahamas attention Xxxxxx Xxxx - Attorney.
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3.3.2 Consultant agrees to a two-year hold on all the shares referenced
herein, subject to third party rights. Consultant surrenders all
rights to the ownership and such rights that would accompany
ownership to Rothschild Group, S.A. while the shares are with
Rothschild Group, S.A. Consultant reserves the right to require
Company counsel to provide opinions in regard to Regulation S that
may be required for Consultant shares.
3.3.3 Consultant further agrees to limit the liquidation process of
Consultant shares in such a manner that will not adversely effect
the trading market for the Company's securities. Consultant will
not sell more than 10% of total LEEP shares owned either obtained
herewith or in future compensation paid by LEEP to Consultant over
any thirty-day period. Furthermore Consultant agrees to hold any
third party entities having interest in Consultant shares to item
3.3.2 and 3.3.3 herein.
ARTICLE IV
MISCELLANEOUS PROVISIONS
4.1 Entire Agreement.
This Agreement constitutes the entire agreement between the parties and
supersedes any prior written or oral agreements concerning the subject matter
contained herein.
4.2 Amendment.
This Agreement may be amended only by the written consent of the parties.
4.3 Waiver.
No waiver of any breach or default of this Agreement by either party hereto
shall be considered to be a waiver of any other breach or default of this
Agreement.
4.4 Notices.
Any notices pertaining to this Agreement shall be in writing and shall be
transmitted by personal hand delivery or fax to an officer or director of
Company or to Consultant, or through the facilities of the United States Post
Office, certified mail, return receipt requested. The addresses set forth below
for the respective parties shall be the places where notices shall be sent,
unless written notice of a change of address is given.
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Company: Leading Edge Earth Products, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000.
Consultant: Jasari International, Inc.
SEE ITEM 4.5 HEREIN
Notices given by mail shall be deemed to be delivered on the day such notice is
deposited in the United States mail, postage prepaid or by overnight courier
receipt.
4.5 Development Period Contact.
All correspondence between parties during the first sixty (60) days of the
Agreement will utilize the firm of Fidelity Capital Houston Texas or their
assignee. All inquiries should commence with a faxed letter stating the request
or inquiry to:
Fidelity Capital
c/o Xxxx Xxxx
0000 Xxxxxxxx Xxxx., X-000
Xxxxxxx, XX 00000
000-000-0000 (ext. 8)
000-000-0000
4.6 Cost of Default.
In addition to any other rights or damages contained herein, in the event either
party defaults in the performance of any term or condition hereunder, the
defaulting party shall pay all expenses and costs incurred by the other party in
enforcing the terms hereof, including, but not limited to, costs, reasonable
attorney's fees, expert witness fees and/or deposition costs, whether incurred
through legal action or otherwise and whether incurred before or after judgment.
4.7 Assignment.
Either parties' rights and duties pursuant to this Agreement are not assignable
without the express written agreement of both parties hereto.
4.8 Consultant not Exclusive Consultant of Company.
Nothing herein shall restrict or otherwise limit the right of Company to engage
or retain other consultants, either as employees or as independent contractors.
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4.9 No Representation Regarding Tax Treatment.
No representation or warranty is being made by any party to any other regarding
the treatment of this transaction for federal or state income taxation. Each
party has relied exclusively on its own legal, accounting and other tax advisers
regarding the treatment of this transaction for federal and state income taxes
and no representation, warranty or assurance from any other party or such other
party's legal, accounting or other adviser.
4.10 Governing Law.
It is understood and agreed that all communications, negotiations, meetings,
agreements and understandings relative to this Agreement have taken place in or
from the state of Tennessee or the state of Washington. No communications,
offerings, proposals or other forms of negotiations have been conducted from the
state of Pennsylvania. This agreement may not be modified or terminated orally,
and shall be construed and interpreted according to the laws of the state of
Washington and enforced in its courts.
4.11 Third Party Beneficiary.
The Company and Consultant are the only parties to this Agreement, and no one
else shall be deemed a third party beneficiary.
4.12 Confidential Information.
a) Consultant recognizes that the relationship created by this
Agreement may involve access by Consultant to information of
substantial value regarding LEEP, including, but not limited to,
designs, drawings, plans, software,, material and manufacturing
specifications, devices, trade secrets,, formulae, know-how, methods,
techniques, and processes (whether to LEEP's patents, or otherwise),
as well as financial, business, and product development information,
and customer lists relating to LEEP's products and operations
(collectively, "Confidential Information"). The Confidential
Information shall not include information: (a) in the public domain or
which subsequently falls into the public, (b) which Consultant can
prove was known through a source independent of prior to any
communication by LEEP, or (c) disclosed to Consultant in good faith by
a third party having a legal right to do so.
b) Consultant acknowledges and agrees that the Company owns and has
the legal right to all right, title and interest to the Confidential
Information. Consultant further agrees that it shall (i) maintain the
secrecy and confidentiality of all Confidential Information that comes
to its
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attention, (ii) take all necessary precautions to prevent any
disbursement of Confidential Information by any of its employees or
agents, and (iii) during the term of this Agreement and for so long as
Confidential Information does not enter into the public domain through
no act or omission of, neither publish, disclose nor disseminate any
part of such Confidential Information in any manner, or use the same,
without the prior written consent of the Company.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
Company:
LEADING EDGE EARTH PRODUCTS, INC.
By:
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Grant Record
CONSULTANT:
JASARI INTERNATIONAL, INC.
By: /s/ Xxxxx Xxxxxxx
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Director
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