Exhibit 10.3
CONSULTING AGREEMENT
This Consulting Agreement (this "Agreement") is made effective as of May 1, 2010
(the "Effective Date"), by and among Hay Creek Consultants Inc. (the
"Consultant") and Liberty Coal Energy Corp. (the "Company").
ARTICLE I
TERM AND DUTIES
1.1 ENGAGEMENT. The Company hereby retains the Consultant, who shall
provide the services of Xxxxx Xxxxxx, and the Consultant hereby accepts being
retained by the Company as a mining exploration and development consultant to
the Company, upon the terms and conditions set forth in this Agreement.
1.2 TERM. This Agreement shall be for a term of three years from the
Effective Date can be terminated by either party upon ninety (90) days written
notice to the other party.
1.3 DUTIES. The Consultant agrees that Xxxxx Xxxxxx shall act as the
President, CEO, interim CFO, Secretary and Treasurer of the Company and provide
consulting services to the Company consistent with the duties of those positions
and such other consulting services as the board of directors may reasonably
require from time to time (the "Services"). The Consultant will devote such
business time, attention, skill, and energy to the business of the Company as
shall be reasonably required to perform his duties hereunder.
1.4 INDEPENDENT CONTRACTOR. In performing the services, the Consultant
shall be an independent contractor and not an employee or agent of the Company,
except that the Contractor shall be the agent of the Company solely in
circumstances where the Contractor must be the agent to carry out its
obligations as set forth in this Agreement. Nothing in this Agreement shall be
deemed to require the Consultant to provide the services exclusively to the
Company and the Consultant hereby acknowledges that the Company is not required
and shall not be required to make any remittances and payments required of
employers by statute on the Consultant's behalf and the Consultant or any of its
agents shall not be entitled to the fringe benefits provided by the Company to
its employees.
1.5 NON-DISCLOSURE.
(a) The Consultant shall hold in confidence, and shall not disclose to any
person outside of the Company, except on a "need to know" basis, any
Proprietary Information concerning the Company. The Consultant shall
use Proprietary Information only for the purpose of performing the
Services for the Company and shall not use or exploit such Proprietary
Information for his benefit or the benefit of any other person or
entity without the prior consent of the Company.
(b) Proprietary Information means any tangible or intangible proprietary
or confidential information or materials or trade secrets belonging to
the Company or its affiliates (whether disclosed orally, in writing,
in electronic format or otherwise), including, but not limited to,
customers, suppliers, processes, methods and techniques; equipment;
data; reports; know-how; existing and proposed contracts with third
parties; and business plans, including information concerning the
existence and scope of activities of any research, development,
marketing or other projects of the Company, and including confidential
financial information and information concerning the business affairs
of the Company which are furnished, disclosed, learned or otherwise
acquired by the Consultant during or in the course of discussions or
otherwise pursuant to this Agreement. Proprietary Information of a
Company shall also include information embodying or developed by use
or testing of Proprietary Information of the Company.
(c) The non-disclosure obligations of the Consultant shall not apply to
any Proprietary Information to the extent that such Proprietary
Information: (i) is known to the public at the time of disclosure or
becomes known through no wrongful act on the part of the Consultant or
any of her representatives; (ii) becomes known to the Consultant
through disclosure by sources other than the Company having the legal
right to disclose such Proprietary Information; (iii) has been
independently developed by the Consultant without reference to or use
of the Proprietary Information; or (iv) is required to be disclosed by
the Consultant to comply with a court order or similar legal process,
provided that the Consultant provides prior written notice of such
disclosure to the Company and at no cost or expense to the Consultant
takes reasonable and lawful actions to avoid and/or minimize the
extent of such disclosure.
(d) The Consultant agrees that the Company is and shall remain the
exclusive owner of the Proprietary Information and all patent,
copyright, trade secret, trademark and other intellectual property
rights therein. No license or conveyance of any such rights to the
Consultant is granted or implied under this Agreement. Consultant
shall maintain all copyright, confidentiality and other proprietary
markings on the Proprietary Information of the Company.
(e) The Consultant shall, upon the request of the Company, return to the
Company all media, documents and other manifestations of Proprietary
Information received or developed by the Consultant pursuant to this
Agreement and all copies and reproductions thereof, including, without
limitation, all back-up copies in electronic formats.
1.6 COMPANY APPROVAL REQUIRED. The Consultant agrees that all
communications, releases, interviews, and materials intended to be disseminated
for the purposes of investor relations must be approved by the Company in
advance.
ARTICLE II
COMPENSATION
2.1 COMPENSATION. As compensation for the Services, the Company hereby
agrees to pay to the Consultant a fee (the "Monthly Fee") of $5,000, payable on
the 1st day of each month of the term of this Agreement for 50% of Xxxxx
Xxxxxx'x time commitment, and $10,000 per month starting upon the Company
determining that the full time engagement of Xx. Xxxxxx is warranted.
2.2 OTHER BUSINESSES. The Company acknowledges and agrees that during the
Term, the Consultant will continue to be involved with, engaged in, render
services for, and permit his name and the names of his affiliates to be used in
connection with, both existing and new businesses other than the Company. With
the exception of North American coal projects, the assumption by Consultant of
his duties hereunder shall be without prejudice to his rights (or the rights of
his affiliates) to maintain such other interests and activities and to receive
and enjoy profits or compensation there from.
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ARTICLE III
EXPENSES
3.1 EXPENSES. The Consultant shall be responsible for all of his expenses
related to operation of its office, employees, and telephone(s). The Company
will pay on behalf of the Consultant (or reimburse the Consultant for) the
reasonable expenses related to travel incurred by the Consultant in the
performance of the Services as well as any pre-approved expenses.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.1 BY THE CONSULTANT. The Consultant represents and warrants to the
Company that the execution and delivery of this Agreement by the Consultant does
not, and the performance by the Consultant of the Consultant's obligations
hereunder will not, with or without the giving of notice or the passage of time,
or both: (a) violate any judgment, writ, injunction, or order of any court,
arbitrator, or governmental agency applicable to the Consultant; or (b) conflict
with, result in the breach of any provisions of or the termination of, or
constitute a default under, any agreement to which the Consultant is a party or
by which the Consultant is or may be bound.
4.2 BY THE COMPANY. The Company hereby represents and warrants to the
Consultant that the following statements in this section 4.2 are correct and
complete as of the Effective Date:
(a) The Company is duly organized, validly existing and in good standing
under the laws of the State of Nevada, and has all requisite power and
authority to own, lease and operate its properties and assets and to
carry on its business as it is presently being conducted. The entry
into this Agreement, the performance of its obligations hereunder are
not in violation of, in conflict with, or in default under any of the
certificate of incorporation, bylaws or comparable charter documents
of the Company, and there exists no condition or event which, after
notice or lapse of time or both, would result in any such violation,
conflict or default.
(b) The Company has all requisite power to execute and deliver this
Agreement and to perform its obligations hereunder and, subject to the
conditions set forth herein, to consummate the transactions
contemplated hereby. The execution, delivery and performance of this
Agreement has been duly authorized by all requisite corporate action
on behalf of the Company.
(c) The execution, delivery and performance by the Company of its
obligations under this Agreement and the consummation of the
transactions contemplated hereby, do not and will not: (i) violate,
conflict with, constitute or result in (in each case, with or without
notice, lapse or time or both) a material default or a material breach
under, or result in the acceleration, termination or cancellation of
(or entitle any person or give any person the right to accelerate,
terminate or cancel) any material obligation under, or result in the
loss of a material benefit under, or require any material consent,
approval or authorization under, any contract to which the Company is
a party; (ii) contravene or violate in any law, statute, rule or
regulation applicable to the Company or any of its assets or
properties, or any governmental order to which the Company is a party
or by which the Company or any of its assets or properties is bound;
(iii) result in the creation or imposition of any encumbrance on any
of the material assets or material properties of the Company; (iv)
constitute an event which, after notice or lapse of time or both,
would result in any conflict, breach, violation, default, requirement,
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loss, creation or imposition of any encumbrance, termination or
impairment or similar event described in clauses (i)-(iii) above.
ARTICLE V
GENERAL PROVISIONS
5.1 INJUNCTIVE RELIEF AND ADDITIONAL REMEDIES. The parties hereto
acknowledge that the injury that would be suffered by the non-breaching party as
a result of a breach of the provisions of this Agreement would be irreparable
and that an award of monetary damages to the non-breaching party for such a
breach would be an inadequate remedy. Consequently, the non-breaching party will
have the right, in addition to any other rights such party may have, to obtain
injunctive relief to restrain any breach or threatened breach or otherwise to
specifically enforce any provision of this Agreement, and the non-breaching
party will not be obligated to post bond or other security in seeking such
relief.
5.2 WAIVER. The rights and remedies of the parties to this Agreement are
cumulative and not alternative. Neither the failure nor any delay by either
party in exercising any right, power, or privilege under this Agreement will
operate as a waiver of such right, power, or privilege, and no single or partial
exercise of any such right, power, or privilege will preclude any other or
further exercise of such right, power, or privilege or the exercise of any other
right, power, or privilege. To the maximum extent permitted by applicable law,
(a) no claim or right arising out of this Agreement can be discharged by one
party, in whole or in part, by a waiver or renunciation of the claim or right
unless in writing signed by the other party; (b) no waiver that may be given by
a party will be applicable except in the specific instance for which it is
given; and (c) no notice to or demand on one party will be deemed to be a waiver
of any obligation of such party or of the right of the party giving such notice
or demand to take further action without notice or demand as provided in this
Agreement.
5.3 BINDING EFFECT, DELEGATION OF DUTIES PROHIBITED. This Agreement shall
inure to the benefit of, and shall be binding upon, the parties hereto and their
respective successors, permitted assigns, heirs, and legal representatives,
including any entity with which the Company may merge or consolidate or to which
all or substantially all of their respective assets may be transferred. The
rights and obligations of the Consultant under this Agreement, being personal,
may not be assigned or delegated without the prior written consent of the
Company. The rights and obligations of the Company under this Agreement may not
be assigned without the prior written consent of the Consultant.
5.4 NOTICES. All notices, consents, waivers, and other communications under
this Agreement must be in writing and will be deemed to have been duly given
when (a) delivered by hand (with written confirmation of receipt), (b) sent by
facsimile (with written confirmation of receipt), provided that a copy is mailed
by registered mail, return receipt requested, or (c) when received by the
addressee, if sent by a nationally recognized overnight delivery service
(receipt requested), in each case to the appropriate addresses and facsimile
numbers set forth below (or to such other addresses and facsimile numbers as a
party may designate by notice to the other parties):
If to Consultant: Xxxxx Xxxxxx
XX Xxx 0000
Xxxxx Xxxx Xxxxx, XX 00000
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If to Company: c/o Xxxxxxx X. Xxxxxxxxx
Xxxxxxxxx Xxxxxx, 0000 - 000 Xxxxxx Xxxxxx
Xxxxxxxxx X.X. X0X 0X0
5.5 INDEPENDENT LEGAL ADVICE. The Consultant acknowledges that:
(a) this Agreement was prepared by the X.X. Xxxxxxxxx Law Corporation for
the Company;
(b) X.X. Xxxxxxxxx Law Corporation received instructions from the Company
and does not represent the Consultant;
(c) the Consultant has been requested to obtain his own independent legal
advice on this Agreement prior to signing this Agreement;
(d) the Consultant has been given adequate time to obtain independent
legal advice;
(e) by signing this Agreement, the Consultant confirms that he fully
understands this Agreement; and
(f) the Consultant has obtained independent legal advice.
5.6 JURISDICTION. This Agreement is governed by the laws of the State of
Nevada and the federal laws of the United States applicable therein.
5.7 SEVERABILITY. If any provision of this Agreement is held invalid or
unenforceable by any court of competent jurisdiction, the other provisions of
this Agreement will remain in full force and effect. Any provision of this
Agreement held invalid or unenforceable only in part or degree will remain in
full force and effect to the extent not held invalid or unenforceable.
5.8 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original copy of this
Agreement and all of which, when taken together, will be deemed to constitute
one and the same agreement.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
effective as of the date above first written above.
LIBERTY COAL ENERGY CORP.
/s/ Xxxxxxxx Xxxxxxx
-----------------------------
Name: Xxxxxxxx Xxxxxxx
Position: Director
HAY CREEK CONSULTANTS INC.
/s/ Xxxxx Xxxxxx
-----------------------------
Name: Xxxxx Xxxxxx
Position: President
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