Exhibit 10.4
CONSULTING AGREEMENT
This Consulting Agreement (this "Agreement") is made effective as of April 12,
2010 (the "Effective Date"), by and among Xxxxxx X. Xxxxxxx (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 Xxxxxx X. Xxxxxxx, 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 Xxxxxx Xxxxxxx shall act as the CFO,
Secretary and Director 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 $2,500, payable on the 1st
day of each month of the term of this Agreement for 25% of Xxxxxx Xxxxxxx'x time
commitment, and $8,000 per month starting upon the Company determining that the
full time engagement of Xx. Xxxxxxx 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.
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:
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(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, 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.
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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: Xxxxxx Xxxxxxx
Xxxxxxxx. 00x
X-00000 Xxxxxxxxx
If to Company: c/o Xxxx X. Xxx
Xxxxxxxxx Xxxxxxx, LLP, 0000 X Xxxxxx,
Xxxxx 0000
Xxxxxxxxx X.X. X0X 0X0
IN WITNESS WHEREOF the parties hereto have executed this Agreement on the 15th
day of August, 2010.
Liberty Coal Energy Corp.:
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx CEO/President
Consultant:
/s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxx X. Xxxxxxx
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