EXECUTIVE CONSULTANT AGREEMENT
This Executive Consultant Agreement (the "Agreement") is made and
entered into effective as of the 15th day of July, 2001 (the "Effective
Date"), between PINECREST VENTURES, INC., a Nevada corporation, (the
"Company") and XXXXXX XXXXXXXX (the "Consultant").
WHEREAS:
A. The Company is engaged in the business of mineral exploration.
B. The Company desires to retain the Consultant to act as President
and Chief Executive Officer of the Company and to provide consultant
services to the Company on the terms and subject to the conditions of
this Agreement.
C. The Consultant has agreed to act as President and Chief Executive
Officer of the Company and to provide consultant services to the
Company on the terms and subject to the conditions of this Agreement.
THIS AGREEMENT WITNESSES THAT in consideration of the premises and
mutual covenants contained in this Agreement and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties, intending to be legally bound hereby, agree
as follows:
1. DEFINITIONS
1.1 The following terms used in this Agreement shall have the meaning
specified below unless the context clearly indicates the contrary:
(a) "Consultant Fee" shall mean the consultant fee payable to
the Consultant at the rate set forth in Section 5.1;
(b) "Board" shall mean the Board of Directors of the Company;
(c) "Term" shall mean the term of this Agreement beginning on
the Effective Date and ending on the close of business on
the effective date of the termination of this Agreement.
2. ENGAGEMENT AS A CONSULTANT
2.1 The Company hereby engages the Consultant as a consultant to
provide the services of the Consultant in accordance with the terms and
conditions of this Agreement and the Consultant hereby accepts such
engagement.
3. TERM OF THIS AGREEMENT
3.1 The term of this Agreement shall become effective and begin as of
the Effective Date, and shall continue until the close of business on
June 14, 2003 unless this Agreement is earlier terminated in accordance
with the terms of this Agreement.
4. CONSULTANT SERVICES
4.1 The Consultant agrees to act as President and Chief Executive
Officer of the Company and to perform the following services and
undertake the following responsibilities and duties to the Company to
be provided by the Consultant to the Company as consulting services
(the "Consulting Services"):
(a) exercising general direction and supervision over the
business and financial affairs of the Company;
(b) providing overall direction to the management of the
Company;
(c) reporting directly to board of directors of Company;
(d) performing such other duties and observing such
instructions as may be reasonably assigned from time to
time by or on behalf of the board of directors of the
Company in the Consultant's capacity as President and Chief
Executive Officer, provided such duties are within the
scope of the Company's business and implementation of the
Company's business plan.
(e) Providing offices and administrative services for the
Company.
4.2 Throughout the Term of this Agreement, the Company shall also
nominate the Consultant to serve as a member of the Board and upon such
nomination Consultant shall agree to so serve.
4.3 The Consultant initially shall be based in Vancouver, British
Columbia.
4.4 The Consultant shall devote his attention and energies to the
business affairs of the Company on a part-time basis as may be
reasonably necessary for the discharge of his duties as President and
Chief Executive Officer, provided, however, the Consultant may engage
in reasonable business, investment and other personal activities that
do not interfere with the Consultant's obligations hereunder.
4.5 The Consultant will at all times be an independent contractor and
the Consultant will not be deemed to be an employee of the Company.
5. CONSULTANT FEE
5.1 During the term of this Agreement and subject to Section 5.2, the
Company shall pay the Consultant a consultant fee in consideration for
the provision of the Consulting Services equal $1,000 US month (the
"Consultant Fee").
5.2 The Consultant Fee will increase to $5,000 US per month upon the
Company achieving sufficient financing for advanced exploration
activities requiring the Consultant to spend 50% or more of his time
performing the duties outlined in this agreement.
6. STOCK OPTIONS
6.1 The Consultant may be granted, subject to the approval of the
Company's board of directors, incentive stock options to purchase
shares of the Company's common stock in such amounts and at such times
as the Board of Directors of the Company, in their absolute discretion,
may from time to time determine. Such options will be in an amount and
of a nature similar to those granted by the Company to other directors
and senior officers of the Company, with adjustment for the merit and
performance of the Consultant. All Stock Options will be subject to
the terms and conditions of the Company's Stock Option Plan, a copy of
which has been delivered to the Consultant. The Consultant
acknowledges and agrees that (i) the Consultant will only sell any
shares issued by the Company on exercise of any Stock Options in
accordance with all applicable securities laws, including the
Securities Act of 1933; and (ii) the shares issued upon exercise of any
Stock Options may be subject to restrictions on resale imposed by
applicable securities law; and (iii) the Company may legend all stock
certificates representing the shares issued upon exercise of any Stock
Options with applicable resale restrictions, as reasonably advised by
the Company's legal counsel; (iv) the Consultant has received and
reviewed a copy of the Stock Option Plan.
7. REIMBURSEMENT OF EXPENSES
7.1 The Company will pay to the Consultant, in addition to the
Consultant Fee, the reasonable travel and promotional expenses and
other specific expenses incurred by the Consultant in provision of the
Consulting Services, provided the Consultant has obtained the prior
written approval of the Company.
8. TERMINATION
8.1 The Company may terminate this Agreement at any time upon
the occurrence of any of the following events of default (each an
"Event of Default"):
(a) the Consultant's commission of an act of fraud, theft or
embezzlement or other similar willful misconduct;
(b) the neglect or breach by the Consultant of his material
obligations or agreements under this Agreement; or
(c) the Consultant's refusal to follow lawful directives of the
Board,
provided that notice of the Event of Default has been delivered to the
Consultant and provided the Consultant have failed to remedy the
default within thirty days of the date of delivery of notice of the
Event of Default.
8.2 The Company may terminate this Agreement in the absence of an
Event of Default by delivering notice of termination to the Consultant
and paying to the Consultant an amount equal to six months of the
Consultant Fee in a lump sum as full and final payment of all amount
payable under this Agreement, including damages for wrongful
termination, within 30 days of delivery of the notice of termination.
Such payments shall be conditioned on the Consultant giving a general
release to the Company and its affiliates in the form reasonably
satisfactory to the Company, but the general release shall not be
required to include a release of any the Consultant's claims with
regard to any payment or other benefit due to him under this Agreement
where the payment or other benefit has not been received by the
Consultant.
8.3 The Consultant may terminate this Agreement at any time in the
event of any breach of any material term of this Agreement by the
Company, provided that written notice of default has been delivered to
the Company and the Company has failed to remedy the default within
thirty days of the date of delivery of notice of default.
8.4 On termination of this Agreement for any reason, all rights and
obligations of each party that are expressly stated to survive
termination or continue after termination will survive termination and
continue in full force and effect as contemplated in this Agreement.
9. PROPRIETARY INFORMATION
9.1 The Consultant will not at any time, whether during or after the
termination of this Agreement for any reason, reveal to any person or
entity any of the trade secrets or confidential information concerning
the organization, business or finances of the Company or of any third
party which the Company is under an obligation to keep confidential,
except as may be required in the ordinary course of performing the
Consultant Services to the Company, and the Consultant shall keep
secret such trade secrets and confidential information and shall not
use or attempt to use any such secrets or information in any manner
which is designed to injure or cause loss to the Company. Trade secrets
or confidential information shall include, but not be limited to, the
Company's financial statements and projections, expansion proposals,
customer lists and details of its Internet web site or business
relationships with banks, lenders and other parties not otherwise
publicly available. The obligations of the Consultant set forth in
this Section 9.1 and will survive termination of this Agreement.
10. NON-COMPETE
10.1 The Consultant agrees that, in the event of termination of this
Agreement, for a period of six (6) months following the termination of
this Agreement, the Consultant will not, without the Company's consent,
directly or alone or as a partner, joint venturer, officer, director
employee, consultant, agent, independent contractor or stockholder or
other owner of any entity or business, engage in any business which is
directly competitive with the business of the Company in any territory
in which the Company is engaged in business at the date of termination,
including (i) any line of business that is engaged in by the Company
and its subsidiaries as of the Effective Date; or (ii) any other line
of business that is engaged in by the Company (or with respect to which
the Company has made preparations to engage) as of the date of such
termination of this Agreement; provided, however, that the ownership by
the Consultant of not more than five percent (5%) of the shares of any
publicly traded class of stock of any corporation shall not be deemed,
in and of itself, to violate the prohibitions of this Section 10.1.
10.2 The restrictions in this Section 10, to the extent applicable,
shall be in addition to any restrictions imposed upon the Consultant by
statute or at common law.
10.3 The parties hereby acknowledge that the restrictions in this
Section 10 have been specifically negotiated and agreed to by the
parties hereto and are limited only to those restrictions reasonably
necessary to protect the Company from unfair competition. The parties
hereby agree that if the scope or enforceability of any provision,
paragraph or subparagraph of this Section 10 is in any way disputed at
any time, and should a court find that such restrictions are overly
broad, the court may modify and enforce the covenant to the extent that
it believes to be reasonable under the circumstances. Each provision,
paragraph and subparagraph of this Section 10 is separable from every
other provision, paragraph and subparagraph and constitutes a separate
and distinct covenant.
10.4 The obligations and agreements of the Consultant set forth in
Sections 10.1, 10.2, and 10.3 will survive termination of this
Agreement for the periods specified in Section 10.1.
11. RELIEF
11.1 The Consultant hereby expressly acknowledges that any breach or
threatened breach by the Consultant of any of the terms set forth in
Section 9 or 10 of this Agreement may result in significant and
continuing injury to the Company, the monetary value of which would be
impossible to establish, and any such breach or threatened breach will
provide the Company with any and all rights and remedies to which it
may be entitled under the law, including but not limited to injunctive
relief or other equitable remedies.
12. PARTIES BENEFITED; ASSIGNMENTS
12.1 This Agreement shall be binding upon, and inure to the benefit
of, the Consultant, his heirs and his personal representative or
representatives, and upon the Company and its successors and assigns.
Neither this Agreement nor any rights or obligations hereunder may be
assigned by the Consultant.
13. NOTICES
13.1 Any notice required or permitted by this Agreement shall be in
writing, sent by registered or certified mail, return receipt
requested, or by overnight courier, addressed to the Board and the
Company at its then principal office, or to the Consultant at the
address set forth in the preamble, as the case may be, or to such other
address or addresses as any party hereto may from time to time specify
in writing for the purpose in a notice given to the other parties in
compliance with this Section 13. Notices shall be deemed given when
delivered.
14. GOVERNING LAW
14.1 This Agreement shall be governed by and construed in accordance
with the laws of the State of Nevada and each party hereto adjourns to
the jurisdiction of the courts of the State of Nevada.
15. REPRESENTATIONS AND WARRANTIES
15.1 The Consultant represent and warrant to the Company that (a) the
Consultant is under no contractual or other restriction which is
inconsistent with the execution of this Agreement, the performance of
his duties hereunder or other rights of Company hereunder, and (b) the
Consultant is under no physical or mental disability that would hinder
the performance of his duties under this Agreement.
16. MISCELLANEOUS
16.1 This Agreement contains the entire agreement of the parties
relating to the subject matter hereof.
16.2 This Agreement supersedes any prior written or oral agreements or
understandings between the parties relating to the subject matter
hereof.
16.3 No modification or amendment of this Agreement shall be valid
unless in writing and signed by or on behalf of the parties hereto.
16.4 A waiver of the breach of any term or condition of this Agreement
shall not be deemed to constitute a waiver of any subsequent breach of
the same or any other term or condition.
16.5 This Agreement is intended to be performed in accordance with,
and only to the extent permitted by, all applicable laws, ordinances,
rules and regulations. If any provision of this Agreement, or the
application thereof to any person or circumstance, shall, for any
reason and to any extent, be held invalid or unenforceable, such
invalidity and unenforceability shall not affect the remaining
provisions hereof and the application of such provisions to other
persons or circumstances, all of which shall be enforced to the
greatest extent permitted by law.
16.6 The headings in this Agreement are inserted for convenience of
reference only and shall not be a part of or control or affect the
meaning of any provision hereof.
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16.7 The Consultant acknowledges and agrees that Xxxxxxx Law Firm has
acted solely as legal counsel for the Company and that the Consultant
has been recommended to obtain independent legal advice prior to
execution of this Agreement.
IN WITNESS WHEREOF, the parties have duly executed and delivered this
Agreement as of the date first written above.
PINECREST VENTURES, INC.
by its authorized signatory:
/s/ Xxxx Xxxx
-----------------------------
Signature of Authorized Signatory
XXXX XXXX
-----------------------------
Name of Authorized Signatory
DIRECTOR
----------------------------
Position of Authorized Signatory
SIGNED, SEALED AND DELIVERED
BY XXXXXX XXXXXXXX
In the presence of:
/s/ Xxxxx Xxxxxxx
---------------------------
Signature of Witness
0000 Xxxxxxx Xxxxxx /s/ Xxxxxx Xxxxxxxx
--------------------------- -----------------------------
Address of Witness XXXXXX XXXXXXX
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