CONSULTING AGREEMENT DATED JANUARY 1, 2006 BETWEEN ECCO ENERGY CORP. AND MICHAEL WITTENBURG
EXHIBIT
10.2
THIS
AGREEMENT is entered into as of January 1, 2006, by XXXXXXX
XXXXXXXXXX
(the
“Consultant”) and SAMURAI
ENERGY CORP.,
a
Delaware corporation (the “Company”)
| 1. |
Term
of Agreement.
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a) Termination
Upon Notice.
This
Agreement may be terminated at any time by the Consultant or by the Company
by
giving the other party (5) days advance notice in writing. Provided, however,
that Consultant shall be entitled to receive all compensation earned pursuant
to
Xxxxxxxxx 0, xxxxx, related to services performed prior to
termination.
b) Expiration
Date. This
Agreement shall terminate on December 31, 2006, if not terminated earlier under
Subsection (a) above.
c) Fees
and Expenses. Upon
the
termination of this Agreement under Subsection (a) or (b) above, the Consultant
shall be entitled to the accrued and earned portion of his or her fee incurred
before the termination becomes effective.
| 2. |
Scope
of Services.
|
The
Consultant shall perform certain mutually agreed services for the Company,
including general business matters and other business consulting. It is
anticipated that the Consultant will devote whatever amount of time is
reasonably necessary in furtherance of his performance of services for the
Company, such services not to unreasonably interfere with Consultant’s other
business activities.
| 3. |
Work
for Others.
|
The
Company recognizes and agrees that the Consultant is performing services as
described in Section 2 for others as well as for the Company and that such
services for others do not represent a conflict of interest or a breach of
the
Consultant’s fiduciary duty.
| 4. |
The
Consultant’s Fees and
Expenses.
|
| a) |
The
Company shall pay the Consultant as a fee for his services under
this
Agreement (the “Consulting Fee”) Forty Thousand (40,000) shares (the
“Shares”) of the Company’s common stock (“Common Stock”). The Consulting
Fee shall be fully earned and non-refundable in consideration of
the
Consultant’s execution of this
Agreement.
|
| b) |
As
soon as legally possible following the execution of this Agreement,
the
Company shall cause the Shares to be issued to Consultant under the
Samurai Energy, Corp. Employee Benefit Plan that is registered under
the
Securities Act of 1933, as amended, pursuant to a registration statement
on form S-8 then in effect. The certificates representing the Shared
shall
not contain any restrictive legends. In connection with the issuance
of
the Shares to the Consultant, the Consultant hereby represents and
warrants to the Company that the Consultant is an “accredited investor” as
defined by paragraph (a) of SEC Rule
501.
|
| c) |
The
Company shall issue the certificates representing the Shares free
and
clear of any legend, restriction or stop order, and deliver the shares,
so
registered, to the Consultant. The Company warrants that the Shares
shall
be freely transferable on the books and records of the Company. Nothing
in
this Section 4 (c) shall effect in any way the Consultant’s obligations
and agreement to comply with all applicable securities laws upon
resale of
the Shares. The Company acknowledges that a breach by it of its
obligations hereunder will cause irreparable harm to Consultant by
violating the intent and purpose of the transaction contemplated
hereby.
Accordingly, the Company acknowledges that the remedy at law for
a breach
by it of its obligations under this Section 4 (c) will be inadequate
and
agrees, in the event of a breach or threatened breach by the Company
of
its provisions of this Section 4 (c), that Consultant shall be entitled,
in addition to all other available remedies, to an injunction restraining
any breach and requiring immediate issuance and transfer, without
the
necessity of showing economic loss and without any bond or other
security
being required.
|
| d) |
The
Shares delivered to the Consultant for his services under this Agreement
shall include the Consultant’s costs and expenses incurred in the
performance of this Agreement, including travel, lodging, meals and
legal
fees.
|
| 5. |
No
Employee Benefits.
|
The
Consultant shall not be eligible to participate in any of the Company’s employee
benefit plans, fringe benefit programs, group insurance arrangements or similar
programs.
| 6. |
Independent
Contractor.
|
In
performing services for the Company pursuant to this Agreement, the Consultant
shall act in the capacity of an independent contractor with respect to the
Company and not as an employee of the Company. As an independent contractor,
the
Consultant shall accept any directions issued by the Company pertaining to
the
goals to be attained and the results to be achieved by him or her but shall
be
solely responsible for the manner and hours in which he or she will perform
his
or her services under this Agreement.
| 7. |
Compliance
With Legal Requirements.
|
The
Company shall not provide workers’ compensation, disability insurance, Social
Security or unemployment compensation coverage nor any other statutory benefits
to the Consultant. The Consultant shall comply at his or her expense with all
applicable provisions of workers’ compensation laws, unemployment compensation
laws, federal Social Security law, the Fair Labor Standards Act, federal, state
and local income tax laws, and all other applicable federal, state and local
laws, regulations and codes relating to terms and conditions of employment
required to be fulfilled by employers or independent contractors.
| 8. |
Nondisclosure.
|
During
the term of this Agreement and thereafter, the Consultant shall not, without
the
prior written consent of the Company, disclose or use for any purpose (except
in
the course of his or her service under this Agreement and in furtherance of
the
business of the Company) confidential information or proprietary data of the
Company, except as required by applicable law or legal process; provided,
however, that “confidential information” shall not include any information known
generally to the public or ascertainable from public or published information
(other than as a result of unauthorized disclosure by the Consultant) or any
information of a type not otherwise considered confidential by persons engaged
in the same business or a business similar to that conducted by the Company.
The
Consultant agrees to deliver to the Company at the termination of his or her
service, or at any other time that the Company may request, all memoranda,
notes, plans, records, reports and other documents (and copies thereof) relating
to the business of the Company which he or she may then possess or have under
his or her control.
| 9. |
Miscellaneous
Provisions.
|
| a) |
Notice.
Notices and all other communications contemplated by this Agreement
shall
be in writing and shall be deemed to have been duly given when personally
delivered or when mailed by U.S. certified mail, return receipt requested
and postage prepaid. In te case of the Consultant. Mailed notices
shall be
addressed to him at the address which he most recently communicates
to the
Company in writing. In the case of the Company, mailed notices shall
be
addressed to its corporate headquarters, and all notices shall be
directed
to the attention of Xxxxxx X.
Xxxxxxx.
|
| b) |
Waiver.
No
Provision of this Agreement shall be modified, waived or discharged
unless
the modification, waiver or discharge is agreed to in writing and
signed
by the Consultant and by an authorized officer of the Company. No
waiver
by either party or any breach of, compliance with, any condition
or
provision of this Agreement by the other party shall be considered
a
waiver of any other condition or provision or of the same condition
or
provision at another time.
|
| c) |
Whole
Agreement. No
agreements, representations or understandings (whether oral or written
and
whether express or implied) which are not expressly set forth in
this
Agreement have been made or entered into by either party with respect
to
the subject matter hereof.
|
| d) |
| e) |
Arbitration
and Venue.
In
the event of any dispute(s) (as defined herein below) arising out
of or
relating to this contract, or the breach thereof, the parties agree
to
participate in at least four (4) hours of mediation in accordance
with the
commercial mediation rules of the American Arbitration Association
before
having recourse to arbitration. If the mediation procedure provided
for
herein does not resolve any such dispute, the parties agree that
all
disputes between the parties shall be resolved solely by binding
arbitration administered by the American Arbitration Association
in
accordance with its commercial arbitration rules pursuant to the
Federal
Arbitration Act, 9 US.C. Sections 1-14 (in the event this act shall
be
held to be inapplicable, then the provisions of the Texas General
Arbitration Act shall apply.) Judgment upon the award rendered by
the
arbitrator may be entered in any Court having jurisdiction. The term
“dispute(s)” shall include, but is not limited to all claims, demands and
cases of action of any nature, whether in contract or in tort, at
law or
in equity, or arising under or by virtue of any statute or regulation
or
judicial reasons, that are now recognized by law or that may be created
or
recognized in the future, for resulting past, present and future
personal
injuries, contract damages, intentional and/or malicious conduct,
actual
and/or constructive fraud, statutory and/or common law fraud, class
action
suit, misrepresentations of any kind and/or character, liable, slander,
negligence, gross negligence, and/or deceptive trade practices/consumer
protections act damages, all attorney’s fees, all penalties of any kind,
prejudgment interest and costs of court by virtue of the matters
alleged
and/or matters arising between the parties. The award of the arbitrator
issued pursuant herein shall be final, binding and non-appealable.
The
parties hereby waive any rights to punitive or exemplary or punitive
damages to either party. Venue for any mediation or arbitration provided
for by these provisions shall be Xxxxxx County, Texas. Notwithstanding
anything to the contrary in the aforementioned arbitration rules,
no
arbitration shall exceed a total of twelve (12) hours per dispute
unless
extended by mutual signed, written agreement of the parties. Any
suit for
injunctive relief brought to protect the assets at issue pending
resolution pursuant to this paragraph shall be brought in a court
of
competent jurisdiction in Xxxxxx County,
Texas.
|
f) Severability. The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision hereof, which
shall
remain in full force and effect.
g) Assignment
and Successors. Neither
party shall assign any right or delegate any obligation hereunder without the
other party’s written consent, and any purported assignment or delegation by a
party hereto without the other party’s written consent shall be void. This
Agreement shall be binding upon and inure to the benefit of the Company and
its
successors and the Consultant, his heirs, successors, executors, administrators
and legal representatives.
IN
WITNESS WHEREOF, each of the parties has executed this Agreement, in the case
of
the Company by its duly authorized officer.
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CONSULTANT
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SAMURAI
ENERGY CORP.
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/s/
Xxxxxxx Xxxxxxxxxx
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/s/
Xxxxxx X. Xxxxxxx
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Xxxxxxx
Xxxxxxxxxx
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Xxxxxx
X. Xxxxxxx
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0000
Xxxxxxx Xxxx
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Xxxxxxxxx/X.X.X.
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Xxxxxxxx,
Xxxxx 00000
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00000
Xxxx Xxxxxxx, Xxxxx 0000
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XX#:
__________________
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Xxxxxxx,
Xxxxx 00000
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