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EXHIBIT 10.3
CONSULTING AGREEMENT
THIS AGREEMENT is made as of the 16th day of June, 1997 by and between
Soralena Enterprises Limited, (hereinafter called "Consultant"), an Irish
corporation, and Leading Edge Earth Products, Inc., an Oregon corporation
(hereinafter called the "Company" or "LEEP") with offices at 000 Xxxxxxxxx Xx.,
Xxxxx 000, Xxxxxxx, XX 00000.
R E C I T A L S
WHEREAS, the Company desires marketing, international consulting and
general corporate guidance (the "Services");
WHEREAS, Consultant is capable of providing such services (the
"Services").
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual contained herein, the Company and Consultant hereby agree as follows:
1. ENGAGEMENT.
Upon the terms, and subject to the terms and conditions, herein, LEEP hereby
engages Consultant, to provide the Services and Consultant agrees to serve as a
consultant to the Company and to provide the Services. Consultant shall devote
such time and attention as Consultant reasonably determines to successfully
provide the Services. As part of Consultant's duties hereunder, Consultant
shall:
1.1 Familiarize itself as required with the business, operations, conditions
(financial and otherwise) and prospects of LEEP and;
1.2 Consult and assist the Company (as requested) in developing a general
strategy for growth through international possibilities and;
1.3 Render such other international consulting services as LEEP may request
from time to time.
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2. 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:
2.1 Consultant is a corporation organized under the jurisdiction of Ireland.
2.2 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.
2.3 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:
2.3.1 a natural person resident in the United States;
2.3.2 a partnership or corporation organized or incorporated under the
laws of the United States;
2.3.3 an estate of which any executor or administrator is a U.S.
Person;
2.3.4 a trust of which any trustee is a U.S. Person;
2.3.5 an agency or branch of a foreign entity located in the United
States;
2.3.6 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
2.3.7 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.
2.4 At all relevant times related to the negotiation, offer and sale of the
shares of Common Stock hereunder, Consultant was outside the United
States.
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2.5 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.
2.6 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.
2.7 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.
2.8 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.
3. FEES.
As total compensation for the Services rendered by Consultant hereunder, the
Company shall pay Consultant 400,000 common shares (with Regulation "S"
restrictions) of LEEP within five (5) business days or as soon as possible
thereafter. 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.
4. FEE RESTRICTIONS
4.1 All shares referenced herein as compensation to Consultant are to issued
in Street Name of Rothschild Group, S.A. and to be delivered to
Rothschild Group, S.A. at Xxx Xxxxx, Xxxxxx Xxxxxx, X.X. Xxx X-0000,
Xxxxxx, Xxxxxxx attention Xxxxxx Xxxx - Attorney.
4.2 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 of the shares and such
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rights that would accompany ownership to Xxxxxxxxxx, X.X. 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.
4.3 Consultant agrees to limit the liquidation process of Consultant shares
in such a manner that will not adversely effect the Company's trading
market for their 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 4.2 and 4.3 herein.
5. RESTRICTIVE LEGEND
The shares will bear Regulation "S" restriction(s) when issued.
6. TERM.
6.1 This Agreement shall commence on June 16, 1997 and shall continue
until June 15, 1999, unless terminated by the mutual agreement of
Consultant and LEEP.
6.2 Notwithstanding the termination of this Agreement, Sections 5, 8, and
10 hereof shall survive, provided, however, Section 9 shall only
survive for a period of three (3) years.
7. CONFIDENTIAL INFORMATION.
7.1 DEFINITION. 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.
7.2 DEFINITION NON-DISCLOSURE. 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 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
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Information in any manner, or use the same, without the prior
written consent of the Company.
8. NOTICES
All notices, requests, demands and other communications for or contemplated
hereunder shall be in writing, and shall be addressed to the Parties, their
successors or their assignees at the addresses or such other addresses as the
Parties may designate.
If to the Company: Leading Edge Earth Products, Inc.
000 Xxxxxxxxx Xx., Xxxxx 000
Xxxxxxx, XX 00000.
If to Consultant: Soralena Enterprises Limited
SEE ITEM 16 HEREIN
Such notice shall be deemed duly given when enclosed in a properly sealed or
wrapper addressed package as aforesaid, registered or certified, and, postage
and registry or certification fees prepaid, in a post office branch post office
regularly maintained by the country of destination or by overnight courier's
pre-paid receipt. Parties hereto may change its address for purposes of this
Section by giving 30 days written notice of such change in the manner provided
for in this section.
9. ARBITRATION.
Any dispute between the parties hereto arising out of or to this Agreement shall
be submitted for binding arbitration to the American Arbitration Association
("AAA"), or such other arbitration organization acceptable to both parties and
the parties hereto shall be bound by the results. The prevailing party shall be
entitled to recover its costs, including reasonable attorneys' fees, from the
other party hereto, costs and fees on appeal, if any. The tried-of-fact shall
determine identity of the prevailing party whether or not the arbitration
proceeds to judgment.
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 in or
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.
11. INTEGRATED AGREEMENT.
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As to the subject matter of this Agreement, the Agreement constitutes the entire
agreement of the parties and supersedes any prior agreements between the parties
and all such prior agreements shall be voluntarily terminated by the mutual
consent of the parties hereto and be of no further force or effect.
12. ASSIGNMENT.
This Agreement is not assignable but shall be binding and shall inure to the
benefit of the successors of each party hereto.
13. SEVERABILITY.
Any provision in this Agreement which is, by competent non-precedent setting
authority, declared illegal, invalid or unenforceable shall, as to such
jurisdiction, be ineffective to the extent of illegality, invalidity or
unenforceability without invalidating the provisions hereof or affecting the
legality, validity of such provision in any other jurisdiction. The parties
hereto agree to negotiate in good faith to replace any illegal or invalid
provision of this Agreement with a legal, valid and enforceable provision that,
to the extent possible, will preserve the economic bargain of the Agreement, or
otherwise to amend this Agreement, including the provision to choice of law, to
achieve such result.
14. 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.
15. THIRD PARTY BENEFICIARY
The Company and Consultant are the only parties to this Agreement, and no one
else shall be deemed to have any rights hereunder or be deemed a third party
beneficiary.
16. DEVELOPMENT PERIOD CONTACT
All correspondence between parties during the first 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
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c/o Xxxx Xxxx
0000 Xxxxxxxx Xxxx., X-000
Xxxxxxx, XX 00000
000-000-0000 (ext. 8)
000-000-0000
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of day
and year first above written.
Leading Edge Earth Products, Inc. and Soralena Enterprises Ltd.,
an Oregon corporation an Irish corporation
By: By: /s/ Xxxxxx Xxxxxx
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Grant Record Xxxxxx Xxxxxx
Chief Executive Officer Registered Agent
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