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EXHIBIT 10.3
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is made and entered into as of
April 19, 2004 (the "Effective Date"), between Can-Cal Resources Ltd., a Nevada
Corporation (the "Company"), whose principal place of business is 0000 Xxxxx
Xxxx Xxx, Xxx Xxxxx, Xxxxxx, and Xxxxx Xxxxx, an individual (the "Consultant"),
whose address is Xxxxx 00x, Xx. 0000. Col. Santa Xxxx, Chihuahua, CP 31050,
Chihuahua, Mexico.
R E C I T A L S
A. The Company is engaged in the exploration and development of mineral
resource properties.
B. The Consultant wishes to provide geological consulting services
("Services") to the Company, and the Company wishes to hire the Consultant,
subject to the terms and conditions of this Agreement.
C. The Consultant, by virtue of his involvement with the Company, will become
familiar with and possessed with the manner, methods, trade secrets and other
confidential information pertaining to the Company's Business.
NOW, THEREFORE, in consideration of the mutual agreements herein made, and
the exchange of good and valuable consideration, the exchange and receipt of
which hereby is acknowledged by all parties, the Company and the Consultant do
hereby agree, as follows:
1. RECITALS. The above recitals are true, correct and are herein
incorporated byreference.
2. EMPLOYMENT. The Consultant is hereby employed to provide Services to
the Company in the capacity of Consulting Geologist ("Employment").
The Consultant hereby accepts such Employment, upon the terms and
conditions hereinafter set forth, and agrees to make his Services
available to the Company on a monthly basis, up to twenty (20) days
per month, based on times and lengths of service mutually agreed by
the parties.
3. DURATION. The Employment shall be deemed to have commenced on the
Effective Date and shall continue until either party terminates the
Agreement, by providing the other party with 60-days advance written
notice of termination, or until and unless the Consultant is offered
full-time employment as an employee of the Company or any of its
subsidiaries. The Company will consider offering the Consultant a
full-time employee position, when and if justified by the scope and
breath of the Company's future activities in Mexico. However, the
Company does not warrant or guarantee that the Consultant will be
offered a full-time employee position.
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4. DUTIES DURING EMPLOYMENT PERIOD. The Consultant will perform his
Services to the best of his ability giving the Company the full
benefit of his knowledge, expertise and technical skill.
5. FEES AND OTHER BENEFITS.
(a) Consulting Fee. The Consultant shall be paid a Consulting Fee (the
"Fee"), payable at a rate of US$250 per day of Service, based on the
Consultant's submission of a supporting invoice detailing the nature of the
Services provided and related time commitments. It is agreed that the Fee shall
be payable: (i.) US$160 in cash, by wire transfer of funds to a US bank account
to be advised by the Consultant and (ii.) US$90 in restricted common shares
("Shares") of the Company. The number of Shares to be issued in satisfaction of
the US$90 portion of the Fee shall be determined by dividing US$90 by the
average closing price of the company's common stock, as quoted on the
Over-The-Counter Bulletin Board, applicable to the dates for which Services were
provided. Any fractional Share resulting from the calculation shall be rounded
up. The Fee of $250 per day shall be payable entirely in cash once the Company
has raised, as from the Effective Date, at least US$1.0 million in third party
financing to support its business activities in Mexico or beginning as of
January 1, 2005, whichever comes first.
(b) Business Expense Reimbursement. The Consultant shall be timely
reimbursed for all business-related travel and entertainment expenses, as well
as business-related out-of-pocket expenses, incurred directly in the performance
of his Services, provided he reports same with proper receipts.
(c) Finder's Fee. The Consultant has informed the Company that he has
a database of mineral properties ("Properties") located in Mexico, based on his
involvement with the mining industry in Mexico for over the past ten years. With
the signing of this Agreement, the Consultant shall provide the Company with a
list of the Properties (the "List") in his database, which shall include the
names of the Properties, their location in Mexico, and whether the Properties
are owned by a concessionaire (and the concessionaire's name, if available) or
by the Federal Government. The Company shall have a right of first refusal to
acquire any Property on the List. Any Properties submitted by the Consultant to
the Company for acquisition must be in writing. If the Company declines to
acquire any Property submitted for acquisition by the Consultant, after a 90
days due diligence period, the Consultant shall be free to offer the Property to
another person, company or organization, free of any claim by the Company. The
List shall be delivered to the Company separate from this Agreement and shall be
held strictly confidential.
If the Consultant presents any of the Properties on the List to the Company, and
if the Company subsequently acquires any said Properties, the Consultant shall
be entitled to receive, as a Finder's Fee, a 1% Net Smelter Return Royalty
("NSR") on any future sales of mineral products from any said Properties by the
Company, any successor company in the event of the sale and/or merger of the
Company, or future joint venture entity formed to operate any said Properties.
If the Company subsequently abandons any of the acquired Properties, the Company
agrees to facilitate the transfer of the Property to any person, company, or
organization to be advised by the Consultant, if and as permitted pursuant the
Mines Law of Mexico and provided that the Company will not incur any adverse
legal or tax consequences.
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While this Agreement is in force and the Consultant is providing Services to the
Company, the Consultant shall not be entitled to receive a Finder's Fee on: (i.)
any Properties on the List which are known to the Company as of the Effective
Date, or (ii.) any mineral property brought to the Consultant's attention either
by the Company or a third party, or identified and developed by the Consultant
during the term of this Agreement, even if the mineral property was one of the
Properties on the List and assuming that the Consultant had not previously
formally submitted, in writing, any said Properties to the Company for
acquisition consideration. The mere submission of the List to the Company by the
Consultant shall not be considered a formal presentation of any of the
Properties to the Company for acquisition consideration.
6. DUTIES UPON TERMINATION. Upon the termination of this Agreement, for
whatever reason and howsoever arising or effected, the Consultant shall
forthwith (and in any event not later than fourteen (14) days after such
termination):
a. Deliver up to the Company all documents, statistics, accounts,
memoranda, papers, records and other items of whatsoever nature or description
which may be in his possession or control and relate in any way to the business
or affairs of the Company and no such documents or other items, nor any part of
copy thereof, shall be retained by him.
b. Resign from any office or appointment held by him with the Company
and transfer any share registered in his name as nominee for the Company and
should he fail to do so, the Company is hereby irrevocably authorized in his
name and on his behalf to sign and deliver every such resignation and transfer
7. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION.
a. The Consultant shall not at any time, either during or after the
termination of this Agreement:
(1) Disclose to any person not employed by the Company or any
person not engaged to render services to the Company (except with the prior
written consent of a majority of the members of the Board or an officer duly
authorized by the Board), any confidential information or trade secrets relating
to the Company or any of its business activities obtained by the Consultant
while employed by the Company, if such disclosure would cause demonstrable
injury, monetary or otherwise, to the Company or its business activities;
(2) Engage in conduct, or promote others to engage in conduct,
which would cause demonstrable injury, monetary or otherwise, to the Company or
its business activities
b. Not subject to the provisions of this section shall be any
information which the Consultant can show (1) at the time of disclosure, is in
the public domain as evidenced by printed publication through no fault of the
Consultant; (2) by written documentation was in his possession at the time of
disclosure and which was not acquired directly or indirectly from the Company;
or (3) by written documentation was acquired, after disclosure, from a third
party who did not receive it from the Company, and who had the right to disclose
the information without any obligation to hold such information confidential.
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8. COVENANT NOT TO COMPETE. The Consultant acknowledges and recognizes
the highly competitive nature of Company's Business and further acknowledges and
recognizes that during the course of his Employment, the Consultant will receive
specific knowledge of the Company's Business, access to trade secrets and
confidential information. The Consultant acknowledges that Company is without an
adequate remedy at law in the event this covenant is violated. The Consultant
further acknowledges that this covenant not to compete is an independent
covenant within this Agreement. This covenant shall survive this Agreement and
shall be treated as an independent covenant for the purposes of enforcement.
Accordingly, the Consultant agrees to the following:
a. That during his Employment with the Company, the Consultant will
not individually or in conjunction with others, directly or indirectly, engage
in any activity competitive with the Company's business in Mexico, other than on
behalf of the Company and as agreed by the Company or except without the written
consent of the Company. The Consultant acknowledges and agrees that any mineral
property that is developed or identified by him or becomes known to him during
the term of this Agreement is for the exclusive benefit of the Company.
b. For a period of twenty-four (24) months after termination of the
Consultant's Employment under this Agreement (the "Restricted Period"), the
Consultant will not, individually or in conjunction with others, directly or
indirectly, engage in any activity competitive with the Company's business
within a geographical area which is within three (3) miles of any exploration or
operating mine site of the Company, other than on behalf of the Company and as
agreed by the Company or except without the written consent of the Company.
c. That during his Employment and the Restricted Period, the
Consultant will not directly or indirectly recruit or solicit any employee or
agent of the Company to discontinue such employment or agency relationship with
the Company.
d. That during his Employment and the Restricted Period, the
Consultant will not interfere with, disrupt or attempt to disrupt any past,
present or prospective relationship, contractual or otherwise, between the
Company and any of the Company's clients, employees or agents.
e. The employment of the Consultant in a similar position with
another company engaged in the same line of business shall not be prohibited by
this Covenant not to Compete, so long as the Consultant does not breach this
Section 8.
9. REMEDIES AND ENFORCEMENT.
a. The Consultant acknowledges and agrees that the Company's remedy
at law for a breach or threatened breach of any of the provisions of Sections 7
or 8 above would be inadequate and the breach shall be per se deemed as causing
irreparable harm to the Company. In recognition of this fact, in the event of a
breach by the Consultant of any of the provisions of Sections 7 and 8 above, the
Consultant agrees that, in addition to any remedy at law available to the
Company, including, but not limited to monetary damages, the Company, without
posting any bond, shall be entitled to obtain equitable relief in the form of
specific performance, temporary restraining order, temporary or permanent
injunction or any other equitable remedy which may then be available to the
Company.
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b. If the Consultant violates the restrictions set forth in this
Agreement, then the duration of the restrictions under Sections 7 or 8 above
shall be extended for an amount of time equal to the number of days that the
Consultant violated the Agreement until the date that the Company obtains an
order enjoining the Consultant from said violation.
c. In the event that, despite the express agreement of the
Consultant and the Company, any provision stated herein shall be determined by
any court or other tribunal of competent jurisdiction to be unenforceable for
any reason whatsoever, the parties agree that the provision shall be interpreted
to extend only over the maximum period of time for which it may be enforceable;
and/or over the maximum extent in any and all other respects as to which it may
be enforceable, all as determined by such court or tribunal.
d. In the event that the Consultant challenges this Agreement and an
injunction is issued staying the implementation of the restrictions imposed
herein, the time remaining on the restrictions shall be tolled until the
challenge is resolved by final adjudication, settlement or otherwise, except
that the time remaining on the restrictions shall not be tolled during any
period in which the Consultant is unemployed. If a court finds in favor of the
Company, the restrictions will be imposed for the amount of time that remains on
the restrictions at the time they were tolled, or at the time of the court's
decision of the restrictions were not tolled, as the case may be.
e. The Consultant further acknowledges and agrees that in the event
of a breach, or threatened breach of the provisions of Sections 7 and 8 above,
the Company will suffer immediate and irreparable harm which said harm is
presumed to occur, and that the Company shall be entitled to receive from a
court of competent jurisdiction, a temporary restraining order with or without
notice to the Consultant, as well as the entry of a preliminary and permanent
injunction. Said right to an injunction shall be in addition to and not in
limitation of any other rights or remedies the Company may have for damages or
otherwise.
f. It is further expressly understood and agreed that the provisions
of this Agreement shall apply whether this Agreement is terminated by the
Company or the Consultant or upon its expiration or termination.
g. If the Consultant breaches this provision and the Company seeks
an injunction or other legal remedy to interpret or enforce this covenant, then
the Consultant agrees to pay all reasonable attorneys' fees and costs of the
Company both for the trial and any appeal.
h. Nothing herein contained shall be construed as prohibiting the
Company from pursuing any other remedies available to it for such breach or
threatened breach.
10. COVENANTS AS ESSENTIAL ELEMENTS OF THIS AGREEMENT; SURVIVAL OF
COVENANTS. It is understood by and between the parties hereto that the foregoing
covenants by the Consultant contained in Sections 7 and 8 of this Agreement
shall be construed to be agreements independent of any other element of the
Consultant's relationship with the Company. The existence of any other claim or
cause of action, whether predicated on any other provision in this Agreement, or
otherwise, as a result of the relationship between the parties, shall not
constitute a defense to the enforcement of the covenants in this Agreement
against the Consultant.
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11. EFFECT ON PRIOR AGREEMENTS. This Agreement supersedes any and all
prior or written agreements in their entirety between the parties, which shall
be void and of no further force and effect after the date of this Agreement.
12. NOTICES. Any notice required or permitted to be given under the terms
of this Agreement shall be sufficient if in writing and if sent postage prepaid
by registered or certified mail, return receipt requested, by overnight
delivery, by courier; or by confirmed telecopy, in the case of the Consultant to
the Consultant's last place of business or residence as shown on the records of
the Company, or in the case of the Company to its principal office as set forth
in the introductory paragraph, or such other place as it may designate.
13. WAIVER. Unless agreed in writing, the failure of either party, at any
time, to require performance by the other of any provisions hereunder shall not
affect its right thereafter to enforce the same, nor shall a waiver by either
party of any breach of any provision hereof be taken or held to be a waiver of
any other preceding or succeeding breach of any term or provision of this
Agreement. No extension of time for the performance of any obligation or act
shall be deemed to be an extension of time for the performance of any other
obligation or act hereunder.
14. COMPLETE AGREEMENT. This Agreement contains the entire agreement
between the parties hereto with respect to the contents hereof, except for the
Finder's Fee Agreement between the parties, and supersedes all prior agreements
and understandings between the parties with respect to such matters, whether
written or oral. Neither this Agreement nor any term or provision hereof may be
changed, waived, discharged or amended in any manner other than by an instrument
in writing, signed by the party against which the enforcement of the change,
waiver, discharge or amendment is sought.
15. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
constitute one agreement.
16. BINDING EFFECT/ASSIGNMENT. This Agreement shall be binding upon the
parties hereto, their heirs, legal representatives, successors and assigns and
shall not be assignable by the Consultant. The Company shall require any
successor (whether direct or indirect by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and assets of the
Company, by written agreement expressly to assume and agree to perform this
Agreement in the same manner and to the same extent as the Company would be
required to perform if no such succession had occurred.
17. GOVERNING LAW, VENUE, WAIVER OF JURY TRIAL. This Agreement shall
become valid when executed and accepted by Company. The parties agree that it
shall be deemed made and entered into in the State of Nevada and shall be
governed and construed under and in accordance with the laws of the State of
Nevada without giving effect to any principles of conflicts of law.
18. HEADINGS. The headings of the sections are for convenience only and
shall not control or affect the meaning or construction or limit the scope or
intent of any of the provisions of this Agreement.
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19. SURVIVAL. Any termination of this Agreement shall not affect the
ongoing provisions of this Agreement, which shall survive such termination in
accordance with their terms.
20. SEVERABILITY. Whenever possible, each provision of this Agreement will
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein. If any court
determines that any provision of Sections 8 or 9 hereof is unenforceable because
of the duration or scope of such provision, such court shall have the power to
reduce the scope or duration of such provision, as the case may be, and, in its
reduced form, such provision shall then be enforceable.
21. CONSTRUCTION. This Agreement shall be construed within the fair
meaning of each of its terms and not against the party drafting the document.
THE PARTIES TO THIS AGREEMENT HAVE READ THIS AGREEMENT, UNDERSTAND ITS
TERMS AND CONDITIONS, HAVE HAD THE OPPORTUNITY TO CONSULT WITH INDEPENDENT
COUNSEL OF THEIR OWN CHOICE AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written:
CAN-CAL RESOURCES LTD.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
XXXXXXX X. XXXXX
PRESIDENT & CEO
By: /s/ Xxxxx Xxxxx
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XXXXX XXXXX
CONSULTANT
