CONSULTING SERVICES AGREEMENT
Exhibit
10.1
THIS
AGREEMENT
is made
as of the 22nd
day of
August, 2007.
BETWEEN:
Pacific
Copper Corp. a
corporation incorporated under the laws of the State of Delaware
(herein
called the
“Corporation”)
Party
of
the First Part
-
and
-
Kriyah
Consultants LLC,
a
limited liability company organized under the laws of the State of
Arizona.
(herein
called
“Consultant”)
Party
of
the Second Part
RECITALS:
|
A.
|
The
Corporation wishes to engage the Consultant to assist the Corporation
to
provide administrative and related services based in the Consultant’s
office located in Tucson, Arizona.
|
|
B.
|
The
Corporation desires to benefit from the efficiencies and reduced
cost
which can be achieved by entering into an arrangement with the Consultant
whereby the staff and resources of the Consultant would be available
to
the Corporation to carry out certain administrative and management
functions.
|
|
C.
|
The
Consultant wishes to accept this engagement by the
Corporation.
|
NOW
THEREFORE IN CONSIDERATION OF THE MUTUAL COVENANTS AND AGREEMENTS CONTAINED
IN
THIS AGREEMENT AND OTHER GOOD AND VALUABLE CONSIDERATION, THE PARTIES AGREE
AS
FOLLOWS:
|
1.
|
DEFINITIONS
|
In
this
Agreement,
“Agreement”
means
this agreement as it may be amended from time to time;
“Compensation”
means
amounts set out in Section 4 hereof;
“Confidential
Information”
means
all confidential or proprietary information, including without limitation the
results of drilling or geological reports that have not been made public, any
information about business combinations, investments or private placements
or
asset acquisitions or dispositions that have not bee made public, intellectual
property (including trade secrets) and confidential facts generally relating
to
the business and affairs of the Corporation;
“Corporation”
includes
affiliates, subsidiaries and associates of the Corporation unless the context
otherwise requires;
“Expenses”
means
amounts set out in Section 4 hereof;
1
“Management”
means
the President, the Chief Executive Officer, the Chief Financial Officer, the
Corporate Secretary and such other officers of the Corporation as may be
appointed from time to time, as well as the Board of Directors of the
Corporation; and
“Term”
means
the period commencing September 15, 2007 and terminating in accordance with
Section 10 hereof.
2. REPRESENTATION
AND WARRANTIES
Each
of
the Corporation and the Consultant hereby covenants, represents and warrants
to
each other as follows:
| (a) |
They
have all of the necessary corporate power, authority and capacity
to enter
into this agreement and the agreements and the other instruments
contemplated herein and to perform their respective obligations hereunder
and thereunder. The execution and delivery of this Agreement and
the
agreements and other instruments contemplated herein and the consummation
of the transactions contemplated hereunder and thereunder have or
will be
duly authorized by all necessary corporate or other action required
by
each party;
|
| (b) |
This
Agreement and the agreements and other instruments contemplated herein
when executed will constitute valid and binding obligations of each
of the
parties enforceable against each of them as is applicable in accordance
with the terms hereof and thereof subject, however, to limitations
with
respect to enforcement imposed in connection with laws affecting
the
rights of creditors generally including, without limitation, applicable
bankruptcy, insolvency, moratorium, reorganization or similar laws
and to
the extent that equitable remedies such as specific performance and
conjunction are in the discretion of the court from which they are
sought;
|
| (c) |
Each
of the parties are duly incorporated or organized, validly existing,
in
good standing and are up to date in all of the filings and registration
required under the laws of the jurisdiction in which they are incorporated
or formed; and
|
| (d) |
The
entering into and performance of this Agreement and the agreements
and
other instruments contemplated herein will not violate, contravene,
breach
or offend against or result in any default under any security agreement,
indenture, mortgage, lease, order, undertaking, licence, permit,
agreement, instrument, charter or by-law provision, resolution of
shareholders or directors, statute, regulation, judgment, decree
or law to
which the parties hereto are a party or by which they may be bound
or
affected. No licenses, agreements or other instruments or documents
of the
Corporation or any of its Subsidiary will terminate or require assignment
as a result of the entering into of this Agreement or the consummation
of
the transactions contemplated
hereby.
|
3. ENGAGEMENT
OF THE CONSULTANT
The
Corporation hereby engages the Consultant for the Term to perform the following
services under the supervisions and direction of Management:
| (a) |
Provide
office space, office equipment, utilities, phones and
furniture;
|
| (b) |
Employ
secretarial, bookkeeping, accounting, recordkeeping, legal compliance
and
related personnel;
|
| (c) |
Advise
the Corporation regarding financial planning, corporate development,
and
corporate governance;
|
2
| (d) |
Prepare
or cause to be prepared required documentation for the operation
of the
Corporation in accordance with instructions from
Management;
|
| (e) |
Consistent
with the instructions of Management, provide direction to the
Corporation's legal counsel, accountants and
auditors;
|
| (f) |
Insure
that all accounting records are maintained to meet applicable generally
accepted accounting principals and quarterly and annual reports are
prepared and filed to meet regulatory
requirements;
|
| (g) |
Such
other matters and activities as are requested by Management for the
operation of the Corporation; and
|
| (h) |
All
activities of the Consultant performed on behalf of the Corporation
shall
be carried out at the direction of Management, provided that any
officer
or director of the Corporation associated with the Consultant shall
recuse
himself or herself from voting on the approval of this Agreement
by the
Board of Directors of the
Corporation.
|
4. COMPENSATION
| (a) |
As
compensation for the services to be provided by the Consultant hereunder,
the Corporation agrees to pay to the Consultant, commencing August
15,
2007, a one-time fee of $57,503.77 and on the 15th
of
each month, the sum of $4,000.00
during the Term in accordance with the provisions of Section 5
hereof;
|
The
Consultant shall invoice the Corporation monthly for all expenses incurred
with
respect to the operation of the administration of the Corporation, including
but
not limited to, the Corporation’s allocable share of Consultant’s office rent,
office equipment, employee and contractor wages and benefits, phones and other
office operational costs (such allocable share to be determined according to
the
number of like clients being serviced by Consultant at its Tucson location),
provided that these expenses are incurred substantially in accordance with
monthly and annual budgets to be prepared by the Consultant and approved by
the
Board of Directors from time to time, with the initial budget
attached;
| (b) |
The
Consultant shall provide receipts for all expenses and other items
for
which it is entitled to reimbursement and such other documentation
as may
be reasonably requested by Management or the Corporation’s auditors;
|
| (c) |
It
is understood that the Corporation has procedures for the authorization
of
all payments and the issuance of checks and which payments to the
Consultant are subject. The responsibility for carrying out these
procedures shall rest with the Consultant, its officers and
employees;
|
| (d) |
Upon
execution of this Agreement the Corporation shall issue to the Consultant
common share purchase warrants to purchase 1,000,000 common shares
of the
Corporation exercisable at the closing price of the common share
on the
date this Agreement, Such warrants and the common shares underlying
the
warrants shall vest, commencing as of the date of this Agreement,
over a
period of two years, at the rate of 250,000 warrants every 6 months.
Said
warrants to expire 5 years from date of issue. In the event of a
termination of this Agreement the Consultant shall only be entitled
to the
vested portion of the warrants.
|
| (e) |
The
Corporation undertakes to include the shares underlying the warrants
as
set out in (d) above in the next Registration Statement they file
with the
Securities and Exchange Commission.
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3
5.
TERMS
OF PAYMENT
Fees
and
expenses shall be billed by the Consultant to the Corporation monthly and are
due on receipt of invoice. Amounts unpaid after 15 days shall bear interest
at
the rate of 1.5% per month
6. NATURE
OF RELATIONSHIP
It
is
acknowledged by the parties hereto that Xxxxxx Xxxxxxx, Manager of the
Consultant, is also an officer of the Corporation, and the parties specifically
waive any actual or implied conflict of interest by virtue thereof. The parties
further acknowledge and agree, solely with respect to the rights and obligations
of the Consultant under this Agreement, as follows:
|
(a)
|
the
relationship of the Consultant to the Corporation is that of an
independent contractor;
|
|
(b)
|
the
Consultant is not an employee or agent of the Corporation;
and
|
| (c) |
the
Corporation and the Consultant are not partners or joint venturers
with
each other.
|
7. NO
CONFLICTS OF INTEREST
The
Consultant will not, without the permission of the Corporation, engage in any
business or other transaction or have any financial or other personal interest
which is incompatible with the performance by the Consultant of its duties
under
this Agreement in the manner contemplated by this Agreement.
The
Corporation acknowledges that the Consultant will provide, from time to time,
similar services to other companies which may be in the exploration mining
business and waives any conflict of interest subject to the Consultant’s
properly discharging its duties and obligations under this Agreement and abiding
by the terms of this Agreement, including without limitation those obligations
related to confidentiality.
8. NO
USE OF CONFIDENTIAL INFORMATION
During
and at all times after the Term, the Consultant will cause its officers,
directors and employees to keep confidential all Confidential Information and
will not use for the benefit of the Consultant its officers, directors and
employees or others (except in connection with the business and affairs of
the
Corporation in the course of providing services hereunder) any Confidential
Information and will not disclose Confidential Information to any person except
in the course of providing services under this Agreement to a person who is
employed by the Corporation or with the Corporation’s prior
consent.
The
foregoing prohibition will not apply to any Confidential Information
if:
|
(a)
|
the
Confidential Information is available to the public or in the public
domain at the time of disclosure or use;
or
|
|
(b)
|
disclosure
is required to be made by operation of law, in which case the Consultant
will notify the Corporation immediately upon learning of that requirement;
or
|
| (c) |
disclosure
is made with the Corporation’s prior written
approval.
|
4
| (d) |
All
officers, directors and employees or consultants of the Consultant
providing services to the Corporation will be presented a copy of
the
Corporation’s Corporate Governance Manual and will be required to execute
the section in the manual declaring that they have read the Code
of
Business Conduct and Ethics and agree to comply with its terms and
conditions.
|
|
(e)
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The
Consultant acknowledges that it may be considered an “insider” for
purposes of section 16 of the Securities Exchange Act of 1934 and
agrees,
on behalf of itself, its officers, employees and members, to abstain
from
any xxxxxxx xxxxxxx in the shares of the Corporation. Any trading
in the
shares of the Corporation by officers, employees or members of Consultant
shall occur only during permitted window periods following disclosure
filings by the Corporation.
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9. NO
AUTHORITY TO BIND THE CORPORATION
Without
limiting the provisions of Section 3, the Consultant, in its capacity as
Consultant under this Agreement, has no authority to act on behalf of, or to
hold itself out to be an agent of the Corporation or to bind the Corporation
to
perform any obligations to any third party and the Consultant will, as
appropriate, so inform all third parties with whom the Consultant deals in
the
performance of its services. The Consultant will not use the name of the
Corporation in any advertisement or promotional or marketing material or,
without the use of any such name, suggest or imply in any such material that
the
Consultant has a relationship with the Corporation other than that established
by this Agreement, unless otherwise agreed to in writing by the
Corporation.
10. TERM
AND TERMINATION
The
Term
of this Agreement shall be one (1) year and shall automatically renew from
year
to year unless terminated. Either party may terminate this Agreement at anytime
on 60 days written notice subject to the provisions of Sections 5, and 11
hereof, which Sections shall survive the expiry or termination of this Agreement
and continue in full force and effect.
11. INDEMNIFICATION
The
Corporation will indemnify the Consultant , its employees, officers, members,
managers and directors, against all costs, charges and expenses, including
all
amounts paid to settle an action or satisfy a judgement, reasonably incurred
by
the Consultant in respect of any civil, criminal or administrative action or
proceeding to which the Consultants are a party by reason of being or having
been engaged by the Corporation under this Agreement (a “Claim”), other than an
action (including, without limitation, an action in contract or tort) by the
Corporation as a result of a breach or alleged breach by the Consultants of
this
Agreement or of any duty owed by the Consultant to the Corporation,
if:
|
(a)
|
The
Consultant acted honestly and in good faith with a view to the best
interests of the Corporation; and
|
|
(b)
|
In
the case of a criminal or administrative action or proceeding that
is
enforced by the monetary penalty, the Consultant had reasonable grounds
for believing that the conduct of the Consultant was
lawful.
|
The
Consultant acknowledges that indemnification will be limited to costs, charges
and expenses actually incurred, and will be paid only if the consultant provides
the Corporation with prompt notice of any claim. The Corporation will have
the
right at its own expense, upon written notice to the Consultant, to assume
control of the negotiation, settlement or defence of any Claim and the
Consultant will co-operate fully with the Corporation in respect of such Claim.
If the Corporation does not elect to assume control of the negotiation,
settlement or defence of any Claim, the Consultant may retain its own counsel
to
defend the Claim and will keep the Corporation fully advised, including
supplying copies of all relevant documentation promptly as it becomes available.
The Consultant or the Corporation may not settle or compromise any Claim without
the prior written consent of the other party.
5
12.
NOTICE
Any
notice or communication to be given or made under this Agreement must be in
writing and addressed as follows:
| (a) |
if
to the Corporation:
|
c/o
Medallion Capital Corporation
0000
Xxxxx Xxxx Xxxx., Xxxxx 00X
Xxxxxxxx,
Xxxxxxx X0X 0X0
Attn: Xxxxxxxx
Xxxxxx
Phone:
000-000-0000
Fax:
000-000-0000
Email:
xxxxxxx@xxxxxxxxxxxx.xxx
| (b) |
if
to the Consultant:
|
Kriyah
Consultants LLC
0000
X.
Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx,
Xxxxxxx 00000
Attn: Xxxxxx
Xxxxxxx
Phone:
000-000-0000
Fax: 000-000-0000
Email: xxxxxxxx@xxxxxxxxxxxxxxxxx.xxx
and
will
be deemed to be properly given or made on the earliest of the
following:
| (a) | actual delivery; |
| (b) | 48 hours after being sent by commercial courier service; and |
|
(c)
|
the
day following which any telegram or telecopier message is
sent.
|
Notice
of
change of address for the purpose of notice will also be governed by this
section.
13. ASSIGNMENT
This
Agreement may not be assigned by any party, without the prior written consent
of
the other parties.
14. HEADINGS
The
inclusion of headings in this Agreement is for convenience of reference only
and
is not to affect construction or interpretation.
15. INVALIDITY
OF PROVISIONS
Any
provision of this Agreement that is prohibited or unenforceable in any
jurisdiction will, as to that jurisdiction, be ineffective to the extent of
the
prohibition or unenforceability without invalidating the remaining provisions
of
this Agreement, and any prohibition or unenforceability of that provision in
any
other jurisdiction. For any provision severed there will be deemed substituted
a
like provision to accomplish the intent of the parties as closely as possible
to
the provision as drafted, as determined by any court or arbitrator having
jurisdiction over any relevant proceeding, to the extent permitted by the
applicable law.
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16. ENTIRE
AGREEMENT
This
Agreement constitutes the entire agreement between the parties pertaining to
the
subject matter. There are no warranties, representations or agreements between
the parties in connection with the subject matter except as are specifically
set
out or referred to in this Agreement. No reliance is placed on any
representation, opinion, advice or assertion of fact made by either party or
its
directors, officers or agents to the other party, or its directors, officers
or
agents, except to the extent that the same has been reduced to writing and
included as a term of this Agreement. Accordingly, there is to be no liability,
either in tort or in contract, assessed in relation to any such representation,
opinion, advice or assertion of fact, except to the extent
aforesaid.
17. WAIVER,
AMENDMENT
Except
as
expressly provided in this Agreement, no amendment or waiver of this Agreement
will be binding unless executed in writing by the party to be bound. The failure
of either party at any time to require performance by the other party of any
provisions of this Agreement will in no way affect the right of that party
to
require performance of any other provisions. No waiver of any provision of
this
Agreement will constitute a waiver of any other provision nor will any waiver
of
any breach of any provision of this Agreement be construed as a waiver of any
continuing or succeeding breach of such provision unless otherwise expressly
provided.
18. CURRENCY
All
amounts in this Agreement are stated and will be paid in United States currency
unless otherwise specifically stated.
19. GOVERNING
LAW AND VENUE
This
Agreement is to be governed by and construed in accordance with the laws of
the
State of Arizona, without regard to conflicts of laws principles. Each of the
Parties irrevocably agrees that any action or proceeding with respect to this
Agreement or for recognition and enforcement of any judgment in respect hereof
brought by the other Party hereto or its successors or assigns shall be brought
and determined in the Superior Courts for Pima County, Arizona, and each of
the
Parties hereby irrevocably submits with regard to any such action or proceeding
for itself and in respect to its property, generally and unconditionally, to
the
jurisdiction of the aforesaid courts.
7
IN
WITNESS WHEREOF, THE CORPORATION AND THE CONSULTANT HAVE EXECUTED THIS AGREEMENT
AS OF THE DATE FIRST WRITTEN ABOVE.
BY:
/s/
Xxxxxxxx
Xxxxxx
TITLE:
Corporate
Secretary
KRIYAH
CONSULTANTS LLC
BY:
/s/
Xxxxxx
Xxxxxxx
TITLE:
Manager
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