CONSULTING AGREEMENT
This
Consulting Agreement (“Agreement”) is made as of November __, 2007 by and
between DK
True
Energy Development Ltd., a Cyprus company
whose
address is Akropoleos,
00-00, 0xx Xxxxx, Xxxx/Xxxxxx 000, X.X. 0000, Xxxxxxx, Xxxxxx, and
RTP
Secure Energy Corp., a Delaware corporation whose address is 000 Xxxx
0xx
Xxxxxx,
Xxxxxxxxxx XX 00000 (collectively, the “Consultant”), and United Heritage
Corporation, a Utah corporation whose address is 0000
Xxxx
Xxxx, Xxxxx X, Xxxxxxx, Xxxxx 00000 (the
“Company”), in reference to the following:
RECITALS
WHEREAS,
the Company, the Consultant and other parties who constitute “Purchasers” have
each entered into a Securities Purchase Agreement with the Company on or about
the date of this Agreement; and
WHEREAS,
the Company is required to enter into this Agreement as a condition precedent
to
closing the transactions contemplated by the Securities Purchase
Agreement.
NOW,
THEREFORE,
for good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Consultant agree as follows:
AGREEMENT
1. Term.
The
Company retains the Consultant and the Consultant accepts this appointment
with
the Company for a period of one year, beginning on the date hereof and ending
on
November __, 2008 (the “Term”).
2. Duties
of Consultant. The
Consultant agrees to perform the consulting services set forth on Exhibit “A” to
this Agreement and made a part of it (the “Services”). The Consultant will
determine the method, details and means of performing the Services. The
Consultant may, at the Consultant’s own expense, use employees or other
subcontractors to assist the Consultant with the performance of the
Services.
3. Compensation.
3.1 Common
Stock Warrants.
The
Company shall issue to the Consultant, as compensation for the Services,
Warrants, each in the form attached hereto as Exhibit “B”, to purchase up to an
aggregate of nine million shares of common stock of the Company at an exercise
price of $1.05 per share, as allocated on Exhibit “C” attached hereto
(collectively, the “Warrants”). The Consultant understands and agrees that the
Warrants are subject to the vesting conditions set forth therein, including,
without limitation, a condition that each such warrant must be approved by
the
stockholders of the Company in accordance with applicable federal securities
laws and regulations and the rules and regulations of any national stock
exchange or inter-dealer quotation system on which the Company’s securities are
traded.
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3.2 Investor
Representations.
(i) Investment.
The
Warrants to be acquired by the Consultant will be acquired for investment for
the Consultant’s own account, not as a nominee or agent, and not with a view to
the resale or distribution thereof.
(ii) Accredited
Investor. The
Consultant is an “Accredited Investor” as that term is defined in Rule 501 of
Regulation D promulgated under the Securities Act of 1933, as amended (the
“Securities Act”). The Consultant is able to bear the economic risk of the
Consultant’s investment in the Warrants pursuant to the terms thereof, including
a complete loss of the Consultant’s investment therein.
(iii) Restricted
Securities. The
Consultant understands that the Warrants, and the shares issuable upon exercise
thereof, may not be sold, transferred or otherwise disposed of without
registration under the Securities Act of 1933, as amended, or an exemption
therefrom.
(iv) Legend.
Each
certificate evidencing the Warrants shall be endorsed with the legend
substantially in the form set forth below:
“THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT
OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED OR
HYPOTHECATED UNLESS REGISTERED UNDER SUCH ACT, OR UNLESS THE COMPANY HAS
RECEIVED AN OPINION OF COUNSEL OR OTHER EVIDENCE SATISFACTORY TO THE COMPANY
THAT AN EXEMPTION THEREFROM IS AVAILABLE.”
4. Nondisclosure.
4.1 Access
to Confidential Information. The
Consultant agrees that during the Term the Consultant will have access to and
become acquainted with confidential proprietary information which is owned
by
the Company and is regularly used in the operation of the Company’s business
(“Confidential Information”). The
Consultant agrees that the term “Confidential Information” as used in this
Agreement is to be broadly interpreted and includes (i) information that has,
or
could have, commercial value for the business in which the Company is engaged,
or in which the Company may engage at a later time, and (ii) information that,
if disclosed without authorization, could be detrimental to the economic
interests of the Company.
The
Consultant agrees that the term “Confidential
Information” includes, without limitation, any patent, patent application,
copyright, trademark, trade name, service xxxx, service name, “know-how,”
negative “know-how,” trade secrets, customer and supplier identities,
characteristics and terms of agreement, details of customer or consultant
contracts, pricing policies, operational methods, marketing plans or strategies,
product development techniques or plans, business acquisitions plans, science
or
technical information, ideas, discoveries, designs, computer programs (including
source codes), financial forecasts, unpublished financial information, budgets,
processes, procedures, formulae, improvements or other proprietary or
intellectual property of the Company, whether or not in written or tangible
form, and whether or not registered, and including all memoranda, notes,
summaries, plans, reports, records, documents and other evidence
thereof.
The
Consultant acknowledges that all Confidential Information, whether prepared
by
the Consultant or otherwise acquired by the Consultant in any other way, shall
remain the exclusive property of the Company.
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4.3 Confidential
Information. “Confidential
Information” shall
not
include, however, information that (i) is or becomes generally available to
the public other than as a result of a disclosure by the Consultant or its
representatives in violation of this Agreement; (ii) was known to the
Consultant on a non-confidential basis prior to its disclosure by the Company
or
its representatives; (iii) becomes available to the Consultant on a
non-confidential basis from a person other than the Company or its
representatives who is not known to the Consultant to be otherwise bound by
a
confidentiality agreement with the Company or any of its representatives, or
is
otherwise not known to the Consultant to be under an obligation to the Company
or any of its representatives not to transmit the information to the Consultant;
or (iv) was independently developed by the Consultant without reference to
or use of information provided to the Consultant by or on behalf of the
Company.
4.4 No
Unfair Use by Consultant.
The
Consultant promises and agrees that the Consultant (which shall include its
employees and contractors) shall not misuse, misappropriate, or disclose in
any
way to any person or entity any of the Company’s Confidential Information,
either directly or indirectly, nor will the Consultant use the Confidential
Information in any way or at any time except as required in the course of the
Consultant’s business relationship with the Company. The Consultant agrees that
the sale or unauthorized use or disclosure of any of the Company’s Confidential
Information constitutes unfair competition.
4.5 Further
Acts.
The
Consultant agrees that, at any time during the term of this Agreement or any
extension thereof, upon the request of the Company and without further
compensation, but at no expense to the Consultant, the Consultant shall perform
any lawful acts, including the execution of papers and oaths and the giving
of
testimony, that in the opinion of the Company, its successors or assigns, may
be
necessary or desirable in order to obtain, sustain, reissue and renew, and
in
order to enforce, perfect, record and maintain, patent applications and United
States and foreign patents on the Company’s inventions, and copyright
registrations on the Company’s inventions.
4.6 Obligations
Survive Agreement.
The
Consultant’s obligations under this Section 4 shall survive the expiration or
termination of this Agreement for a period of five (5) years.
5. Termination.
5.1 Termination
on Default. Should
either party default in the performance of this Agreement or materially breach
any of its provisions, the non-breaching party shall provide written notice
thereof to the other party, and such other party shall have a reasonable period
of time of not less than 30 days to cure such default. In the event that such
default or material breach is not timely cured, the non-breaching party may
terminate this Agreement by giving written notification to the breaching party
at the end of such cure period. Termination shall be effective immediately
on
receipt of said termination notice. For purposes of this section, material
breaches of this Agreement shall be limited to, (i) the failure by the Company
to pay the compensation set forth in Section 3 above and fulfill its obligations
under the Warrants; (ii) the willful breach or habitual neglect by a party
of
the duties that said party is required to perform under the terms of this
Agreement; (iii) the Consultant’s commission of acts of dishonesty, fraud, or
material misrepresentation; (iv) the failure by the Consultant or the Company
to
conform to all laws and regulations governing the its duties as specifically
set
forth under this Agreement; or (v) failure of the stockholders to approve of
the
warrants issued to the Consultant as described in Section 3.
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5.2 Return
of Company Property.
Upon the
termination or expiration of this Agreement, the Consultant shall immediately
transfer to the Company, at its request and expense, all Confidential
Information (including, but not limited to, electronic files, records,
documents, drawings, specifications, equipment and similar items in its
possession relating to the business of the Company, including the work product
of the Consultant created pursuant to this Agreement), except that the
Consultant may retain a copy in its legal files.
6. Status
of Consultant.
The
Consultant understands and agrees that the Consultant’s employees are not
employees of the Company and that the Consultant’s employees shall not be
entitled to receive employee benefits from the Company, including, but not
limited to, sick leave, vacation, retirement, death benefits, or an automobile.
The Consultant shall be responsible for providing, at the Consultant’s expense
and in the Consultant’s name, disability, worker’s compensation or other
insurance as well as licenses and permits usual or necessary for conducting
the
Services hereunder. Furthermore, the Consultant shall pay, when and as due,
any
and all taxes incurred as a result of the Consultant’s compensation hereunder,
including estimated taxes, and shall provide the Company with proof of said
payments, upon demand. The Consultant hereby agrees to indemnify the Company
for
any claims, losses, costs, fees, liabilities, damages or injuries suffered
by
the Company arising out of the Consultant’s breach of this section.
7. Representations
and Indemnifications.
7.1 Consultant.
The
Consultant represents that the Consultant has the qualifications and ability
to
perform the Services in a professional manner, without the advice, control,
or
supervision of the Company. The Consultant shall indemnify, defend, and hold
harmless the Company, and the Company’s officers, directors, affiliates,
representatives and shareholders from and against any and all claims, demands,
losses, costs, expenses, obligations, liabilities, damages, recoveries, and
deficiencies, including, without limitation, interest, penalties, and reasonable
attorney fees and costs, that the Company may incur or suffer and that arise,
result from, or are related to any breach or failure of the Consultant to
perform any of its representations, warranties and agreements contained in
this
Agreement.
7.2 Company. The
Company shall indemnify, defend, and hold harmless the Consultant, and the
Consultant’s officers, directors, affiliates, representatives and shareholders
from and against any and all claims, demands, losses, costs, expenses,
obligations, liabilities, damages, recoveries, and deficiencies, including,
without limitation, interest, penalties, and reasonable attorney fees and costs,
that the Consultant may incur or suffer and that arise, result from, or are
related to (a) the performance of its obligations under this Agreement, except
to the extent arising from the gross negligence or willful malfeasance of the
Consultant, or (b) any breach or failure of the Company to perform any of its
representations, warranties and agreements contained in this
Agreement.
7.3 Survival.
The
provisions contained in this Section 7 shall survive the termination of this
Agreement and remain operative and in full force and effect until the applicable
statute of limitations.
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8. Business
Expenses.
The
Company shall reimburse the Consultant for reasonable business expenses incurred
by the Consultant, provided that the Consultant
submits
verification of the nature and amount of said expenses in accordance with the
reimbursement policies from time to time reasonably adopted by the
Company.
Reimbursements shall be made within twenty days of the Consultant’s providing
verification thereof. Notwithstanding the foregoing, the
Company shall have the right to pre-approve, for each month of the Term, each
individual expense exceeding $1,000 and aggregate expenses exceeding $5,000.
The
Company’s obligations with respect to expenses incurred during the term of this
Agreement shall survive the termination of this Agreement.
9. Notices.
Unless
otherwise specifically provided in this Agreement, all notices or other
communications (collectively and severally called “Notices”) required or
permitted to be given under this Agreement, shall be in writing, and shall
be
given by: (A) personal delivery (which form of Notice shall be deemed to have
been given upon delivery), (B) by private airborne/overnight delivery service
(which forms of Notice shall be deemed to have been given upon confirmed
delivery by the delivery agency), or (C) by facsimile transmission, provided
the
receiving party has a compatible device or confirms receipt thereof (which
forms
of Notice shall be deemed delivered upon confirmed transmission or confirmation
of receipt). Notices shall be addressed to the address set forth in the
introductory section of this Agreement, or to such other address as the
receiving party shall have specified most recently by like Notice, with a copy
to the other party.
A
copy of
any notice to the Consultant shall be given as follows at the same time as
it is
given to the Consultant:
Xxxxxxx
X. Xxxxxxxxx
Attorney
at Law
00
Xxxxxxx Xxxx Xxxxx
Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Facsimile:
(000) 000-0000
A
copy of
any notice to the Company shall be given as follows at the same time as it
is
given to the Company:
Xxxxx
Xxxxxxxxx, Esq.
Xxxxxxxxxx
& Xxxxx, LLP
000
Xxxxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
XX 00000
Facsimile:
(000) 000-0000
10. Choice
of Law and Venue.
This
Agreement shall be governed according to the laws of the state of Delaware.
Venue for any legal or equitable action between the Company and the Consultant
which relates to this Agreement shall be in the City of New York, New York,
Borough of Manhattan.
11. Entire
Agreement.
This
Agreement supersedes any and all other agreements, either oral or in writing,
between the parties hereto with respect to the services to be rendered by the
Consultant to the Company and contains all of the covenants and agreements
between the parties with respect to the services to be rendered by the
Consultant to the Company in any manner whatsoever. Each party to this agreement
acknowledges that no representations, inducements, promises, or agreements,
orally or otherwise, have been made by any party, or anyone acting on behalf
of
any party, that are not embodied herein, and that no other agreement, statement,
or promise not contained in this Agreement shall be valid or binding on either
party.
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12. Counterparts.
This
Agreement may be executed manually or by facsimile signature in two or more
counterparts, each of which shall be deemed an original, and all of which
together shall constitute but one and the same instrument.
13.
Arbitration.
The
parties hereby agree that all controversies, claims and matters of difference
shall be resolved by binding arbitration before the American Arbitration
Association (the “AAA”) located in the City of New York, New York, Borough of
Manhattan, according to the rules and practices of the AAA from time-to-time
in
force; provided
however
that the
parties hereto reserve their rights to seek and obtain injunctive or other
equitable relief from a court of competent jurisdiction, without waiving the
right to compel such arbitration pursuant to this section. The arbitrator shall
apply Delaware law in rendering a decision. The decision of the arbitrator
within the scope of the submission will be final and binding on the parties,
and
any right to judicial action on any matter subject to resolution by arbitration
hereunder hereby is waived unless otherwise required by applicable law, except
suit to enforce an award by the arbitrator or in the event resolution by an
arbitrator is not available for any reason. The losing party (as determined
by
the arbitrator) shall pay the arbitrator’s fees and charges; however, each party
shall bear such party’s own costs and expenses with respect to the arbitration
of any controversy, dispute, or claim under this Section 13, including any
legal
fees or expenses.
14. Severability.
If any
term or provision of this Agreement or the application thereof to any person
or
circumstance shall, to any extent, be determined to be invalid, illegal or
unenforceable under present or future laws effective during the term of this
Agreement, then and, in that event: (A) the performance of the offending term
or
provision (but only to the extent its application is invalid, illegal or
unenforceable) shall be excused as if it had never been incorporated into this
Agreement, and, in lieu of such excused provision, there shall be added a
provision as similar in terms and amount to such excused provision as may be
possible and be legal, valid and enforceable, and (B) the remaining part of
this
Agreement (including the application of the offending term or provision to
persons or circumstances other than those as to which it is held invalid,
illegal or unenforceable) shall not be affected thereby and shall continue
in
full force and effect to the fullest extent provided by law.
15. Preparation
of Agreement.
It
is
acknowledged by each party that such party either had separate and independent
advice of counsel or the opportunity to avail itself or himself of same. In
light of these facts it is acknowledged that no party shall be construed to
be
solely responsible for the drafting hereof, and therefore any ambiguity shall
not be construed against any party as the alleged draftsman of this
Agreement.
16. No
Assignment of Rights or Delegation of Duties by Consultant; Company’s Right to
Assign.
The
Consultant’s rights and benefits under this Agreement are personal to the
Consultant and therefore no such right or benefit shall be subject to voluntary
or involuntary alienation, assignment or transfer except as provided in Section
2. The Company may assign its rights
and delegate its obligations under this Agreement to any successor in interest
of the Company.
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17. Counterparts.
This
Agreement may be executed in counterparts, each of which shall be deemed an
original, and all of which together shall constitute one and the same
instrument, binding on all parties hereto.
18. Electronically
Transmitted Documents.
If a
copy or counterpart of this Agreement is originally executed and such copy
or
counterpart is thereafter transmitted electronically by facsimile or email
of a
“pdf.” file, such facsimile or “pdf.” document shall for all purposes be treated
as if manually signed by the party whose facsimile or “pdf.” signature
appears.
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WHEREFORE,
the
parties have executed this Agreement on the date first written
above.
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“CONSULTANT”
DK
True Energy Development Ltd.
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||
| |
|
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| By: | ||
|
Name: Xxxxx Xxxx |
||
| Title: Director | ||
| RTP Secure Energy Corp. | ||
| |
|
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| By: | ||
|
Name: Xxxxxxx X. Xxxxxxxxx |
||
| Title: President | ||
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“COMPANY”
United
Heritage Corporation
|
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| |
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| By: | ||
|
Name: |
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| Title: | ||
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EXHIBIT
“A”
DUTIES
OF CONSULTANT
(1)
The
Consultant agrees to provide consulting services, including but not limited
to
reservoir analysis, geological and engineering expertise, as required and
reasonably requested from time to time by the Company, to assist the Company
with respect to: (i) reviewing technical data and providing advice regarding
the
development of the Company’s Xxxxxxx field; (ii) identifying and introducing the
Company to management candidates, including prospective members of the Company’s
Board of Directors and officers; (iii) interacting with potential investors
in
the Company; (iv) assisting and advising the Company with respect to developing
a pilot program for production of the Xxxxxxx field; (v) assisting and advising
the Company with respect to producing a full development plan for the full
production of the Xxxxxxx field; and (vi) other related matters.
(2)
The
parties understand agree that the Consultant’s responsibilities and role with
respect to the services described in (1) above are that of providing general
information and initial introductions, and additional assistance and cooperation
as may be requested by the Company; and that in no manner or respect is the
Consultant a broker, dealer or an expert nor shall the Consultant have
responsibility for matters related to the viability of any transaction, or
the
tax, financial or legal consequences thereof; and, in that regard, the Company
is responsible for obtaining its own counsel and other advisers with respect
to
such matters.
(3)
The
parties understand and agree that all services performed by DK True Energy
Development Ltd. hereunder shall be performed outside of the United
States.
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EXHIBIT
“B”
FORM
OF WARRANT
10
EXHIBIT
“C”
ALLOCATION
OF WARRANTS
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DK
True Energy Development Ltd.
|
5,250,000
shares
|
|
RTP
Secure Energy Corp.
|
3,750,000
shares
|
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