CONSULTING AGREEMENT
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Consulting Agreement
This
Consulting Agreement (“Agreement”) is between Xxxxxxxx
Uranium, Inc. (“XXXXXXXX”), and Xxxxxx
XxXxxxxx having a place of business as set forth below (“Contractor”). This
Agreement is effective as of May 23, 2008 (the “Effective Date”).
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Whereas
XXXXXXXX and Contractor desire to create a consulting relationship in
connection with certain services to be provided by Contractor to XXXXXXXX,
as described below, the parties agree as follows:
1. Work
and Compensation. Contractor agrees to perform the work
set forth in Exhibit
A (“Statement of
Work”) and to provide any work product resulting therefrom to
XXXXXXXX. Contractor will be paid compensation in the amount
and at the times set forth in Exhibit
B, subject to timely submission of any deliverables in accordance
with the schedule in the applicable Statement of Work. Unless
other terms are set forth in Exhibit B,
XXXXXXXX will pay Contractor for services within thirty (30) days of the
date of receipt of Contractor’s detailed invoice. Contractor
will provide XXXXXXXX with reasonable documentation and work description
in connection with Contractor’s invoices, as requested by
XXXXXXXX.
2. Term.
2.1 Completion of
Services. This
Agreement will become effective on the Effective Date and will continue in
effect until completion of the Statement of Work as set forth in Exhibit A or
any subsequent Statements of Work as set forth in Section 2.2, unless
terminated earlier as set forth in Section 7.1.
2.2 Subsequent Statements of
Work. Contractor and XXXXXXXX may from time to time
execute subsequent Statements of Work in the form of Exhibit
D, each of which will be deemed to be part of this Agreement upon
the earlier of (a) the date of mutual execution of the subsequent
Statement of Work or (b) the date when Contractor commences any work
described on a subsequent Statement of Work that has been duly executed by
XXXXXXXX. To the extent any terms set forth on any subsequent
Statement of Work conflict with the terms of this Agreement, the terms on
the Statement of Work will prevail, but only with respect to the subject
work described therein.
3. Responsibilities. Contractor
will perform and promptly complete the Statement of Work set forth in
Exhibit A
in a professional and timely manner consistent with industry standards at
a location, place and time that Contractor deems
appropriate. Contractor, in its sole discretion, will determine
the manner, method, details and means of performing work under a Statement
of Work. Except as otherwise indicated on Exhibit B attached
hereto, Contractor will provide its own equipment, tools, and other
materials at its own expense in performing work under the Statement of
Work.
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3.1 Acceptance or Rejection of
Work. Although much of the work that the Contractor will
perform, will include providing geological information to subcontractors,
drilling staff, potential strategic partners and liaison work with various
geological and extraction firms employed by XXXXXXXX, it is also possible
that Contractor’s work will be submitted to XXXXXXXX in written
form. In such a case, upon Contractor’s submission of the work
product, XXXXXXXX will, in its sole discretion, accept or reject all or
part of the work product or return it to Contractor with suggested
changes. Contractor acknowledges that if the unaccepted portion
of the work product contains any Confidential Information or XXXXXXXX
Materials, then XXXXXXXX will retain sole and exclusive ownership of such
property, and Contractor will either return the unaccepted work product to
XXXXXXXX or provide XXXXXXXX with satisfactory evidence that the
unaccepted work product has been destroyed.
3.2 Modification of Work
Product. If XXXXXXXX requires a change to the work
product, for instance because it desires to modify the scope of
Contractor’s mining or geological report or because it requires additional
information, it will notify Contractor of the requested change and the due
date for resubmitting the revised work product. XXXXXXXX may
accept or reject all or part of the corrected work product at its sole
discretion. XXXXXXXX will have no obligation to return any
accepted work product to Contractor.
4. Ownership
of Property.
4.1 Works Assigned to
XXXXXXXX. Contractor will promptly make full disclosure
to XXXXXXXX, will provide and deliver to XXXXXXXX, will hold in trust for
the sole right and benefit of XXXXXXXX, and will assign, and does hereby
assign, to XXXXXXXX all Contractor’s right, title and interest in and to
any and all inventions, original works of authorship, developments,
designs, improvements, trade secrets and other work product related to any
Statements of Work, including tangible embodiments thereof, which
Contractor may solely or jointly conceive, develop, make or reduce to
practice, at any time during the term of this Agreement, together with all
patent, copyright, trademark and other rights, including tangible
embodiments thereof, that Contractor has or may acquire in all countries
arising in performance of any Statement of Work (collectively, the “Works”).
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Consulting Agreement
| 4.2 Intellectual Property Rights
Registration. Although the nature of the services Contractor will
be performing are not generally of the sort that product intellectual
property rights, it is conceivable that the services rendered by
Contractor will produce innovations within the field of mineral
extraction, including processes, methods of extraction and terminology and
brand names associated with these processes and methods, which could also
include software designs or algorithms which improve the efficiency of
mineral extraction. Some of these processes or methods may be
patentable or otherwise protectable. Contractor agrees to
assist XXXXXXXX in every lawful way to obtain, prepare and prosecute
applications for letters patent, trademark, mask work and copyright
registrations covering the Works assigned hereunder to XXXXXXXX, in order
to perfect XXXXXXXX’x title to the Works, and to protect and enforce
XXXXXXXX’x rights in the Works in the U.S. or foreign countries, including
promptly executing additional separate assignment(s) for any of the Works,
whenever requested by XXXXXXXX. Such obligations will continue
beyond the completion of the Statement of Work and beyond the termination
of this Agreement, but XXXXXXXX will compensate Contractor at a reasonable
rate for time actually spent by Contractor at XXXXXXXX’x request on such
assistance after such termination. If XXXXXXXX is unable for
any reason to secure Contractor’s signature to apply for or to pursue any
application for any U.S. or foreign letters patent, trademark, mask work
or copyright registrations covering Work assigned to XXXXXXXX, then
Contractor hereby irrevocably designates and appoints XXXXXXXX and its
duly authorized officers and agents as Contractor’s agent and
attorney-in-fact, to act for and in Contractor’s behalf and stead to
execute and file any such application and to do all other lawfully
permitted acts to further the prosecution and issuance of letters patent,
trademark, copyright or mask work registrations with the same legal force
and effect as if executed by Contractor.
4.3 Other
Rights. If Contractor has any rights to any Works that
cannot be assigned to XXXXXXXX, Contractor unconditionally and irrevocably
waives the enforcement of such rights, and all claims and causes of action
of any kind against XXXXXXXX with respect to such rights, and agrees, at
XXXXXXXX’x request and expense, to consent to and join in any action to
enforce such rights. If Contractor has any right to any Works
that cannot be assigned to XXXXXXXX or waived by Contractor, Contractor
unconditionally grants to XXXXXXXX during the term of such rights, an
exclusive, irrevocable, perpetual, worldwide, fully paid and royalty-free
license, with rights to sublicense through multiple levels of
sublicensees, to reproduce, create derivative works of, distribute,
publicly perform and publicly display by all means now known or later
developed, such rights and tangible embodiments thereof.
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4.4 Exceptions to
Assignments. Contractor understands that the provisions
of this Agreement requiring assignment to XXXXXXXX do not apply to any
invention as to which Contractor can prove the following: (a)
no equipment, supplies, facility or trade secret of XXXXXXXX was used in
its development and (b) it does not relate to the Statement of Work or to
XXXXXXXX’x actual or demonstrably anticipated research and development,
and does not result from any work performed by Contractor for
XXXXXXXX. Contractor will advise XXXXXXXX promptly in writing
of the existence and general nature of (but not any confidential subject
matter of) any inventions that Contractor believes meet the criteria in
this Section 4.4, and if so requested, the subject matter of the invention
and all evidence necessary to substantiate such belief.
5. Representations
and Warranties. Contractor hereby represents and
warrants with respect to each Work and to the services Contractor provides
hereunder that Contractor is a qualified, trained geologist, skilled in
the type of services provided under this Agreement. Any Works
or other reports produced under this Agreement are prepared in a manner
consistent with industry best practices throughout the field of mineral
extraction. XXXXXXXX relies on, and Contractor represents that
XXXXXXXX can rely on Contractor’s expertise in the field of Geology
generally and mineral extraction in particular. It is the
understanding of XXXXXXXX that Contractor will personally perform the
services required under this Agreement. However, If Contractor
uses third parties to create any products or to perform any services
related to the Work, then Contractor represents and warrants that
Contractor has (I) obtained all of the necessary rights to the Work from
all such third parties to the same extent as warranted above and (II)
caused such third parties to enter into confidentiality agreements that
contain the same language as contained in this Agreement with respect to
protecting XXXXXXXX’x Confidential Information.
6. Indemnification.
Contractor will indemnify and hold harmless XXXXXXXX, its parents,
stockholders, officers, directors, employees, sub-licensees, customers and
agents (collectively the “Indemnified Parties”)
from any and all claims, losses, liabilities, damages, expenses and costs
(including attorneys’ fees and court costs) that result from a breach of
any representation or warranty of Contractor (a “Claim”) set forth in
Section 5 of this Agreement.
7.
Termination.
7.1 Termination. This
Agreement may be terminated by XXXXXXXX with or without cause, effective
upon delivery of written notice. Contractor may terminate this
Agreement for any reason on seven (7) days’ written notice to XXXXXXXX or
such longer period as may be specified in the attached
exhibits. In the event that Contractor gives notice of
termination during the performance of the Statement of Work, the terms of
the Agreement will govern completion, acceptance and payment by XXXXXXXX
for any work product.
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Consulting Agreement
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7.2 Return of
Materials. Following any notice of termination of this
Agreement given pursuant to Section 7.1 or upon expiration of the term of
this Agreement, Contractor will fully cooperate with XXXXXXXX in all
matters relating to the winding up of Contractor’s pending work on behalf
of XXXXXXXX and the orderly transfer of any work or documents to
XXXXXXXX. Contractor agrees that, at the time of
terminating Contractor’s engagement with XXXXXXXX and at any other time
XXXXXXXX requests, Contractor will deliver to XXXXXXXX any and all
devices, materials, software, records, data, notes, reports, proposals,
lists, correspondence, specifications, drawings, blueprints, sketches,
equipment, other documents or property, or reproductions of any
aforementioned items (in whole or in part) belonging to XXXXXXXX, its
successors, or assigns, or embodying XXXXXXXX’x Confidential Information
or work product developed under this Agreement (collectively “XXXXXXXX
Materials”). Contractor may not retain any XXXXXXXX
Materials without the written authorization of an authorized XXXXXXXX
officer.
7.3 XXXXXXXX Materials.
Contractor agrees it will not use XXXXXXXX Materials for any purpose other
than in performance of the Statement of Work. Upon termination,
Contractor agrees to sign and deliver the “Termination Certification”
attached hereto as Exhibit
C. Contractor will not, during or after Contractor’s engagement
with XXXXXXXX, deliver or transfer to any person, or use, without written
authorization by an authorized XXXXXXXX officer any XXXXXXXX Materials or
other property owned by XXXXXXXX.
8. Confidential
Information.
8.1 XXXXXXXX Confidential
Information. The term “Confidential Information” will be
deemed to include all information obtained by Contractor from XXXXXXXX or
disclosed to Contractor by XXXXXXXX, or which Contractor learned of or
developed during the term of and in connection with Contractor’s
engagement, which relates to XXXXXXXX’x past, present, and future
research, product development or business activities or the results of
such activities. In particular, Confidential Information will
be deemed to include any trade secret, idea, process, invention,
improvement, know-how, information, characters, story lines, prices,
technique, algorithm, computer program (source and object codes),
database, design, drawing, formula or test data, relating to any research
project, work in process, future development, engineering, manufacturing,
marketing, servicing, financing or personnel matter relating to XXXXXXXX,
its present or future products, sales, suppliers, clients, customers,
employees, consultants, investors, licensees, licensors or business,
whether in oral, written, graphic or electronic form, as well as any other
information that XXXXXXXX labels or deems Confidential
Information. Confidential Information will not include
information that Contractor can demonstrate by written record was
previously known to Contractor or publicly disclosed without breach of an
obligation of confidentiality, either prior or subsequent to Contractor’s
receipt of such information
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8.2 Promise Not to
Disclose. Contractor agrees, at all times during the
term of this Agreement and thereafter, to hold in strictest confidence,
and not to use or disclose to any person, firm or corporation without
written authorization of an authorized officer of XXXXXXXX, any
Confidential Information, except such use and disclosure as is necessary
in carrying out Contractor’s work for XXXXXXXX and authorized in writing
by XXXXXXXX. Contractor does not hereby receive any implied or
granted rights or licenses to trademarks, inventions, copyrights or
patents of XXXXXXXX or any third parties. All Confidential
Information (including all copies thereof) will at all times remain the
property of XXXXXXXX and will be returned to XXXXXXXX after the
Contractor’s need for it has expired, or upon request by XXXXXXXX.
8.3 Former and Current Client
Information. Contractor agrees that Contractor will not,
during Contractor’s engagement with XXXXXXXX, improperly use or disclose
any proprietary information or trade secrets of third parties, such as
Contractor’s other employers, clients or companies through which
Contractor has access to such information, if any. Contractor
will not bring onto the premises of XXXXXXXX or use in the performance of
the Statement of Work, any unpublished documents or any property belonging
to third parties, such as Contractor’s former employers, clients or
customers, if any, unless consented to in writing by such party and such
consents are submitted to XXXXXXXX.
8.4 Third Party
Information. Contractor recognizes that XXXXXXXX may
have received and in the future may receive from third parties their
confidential or proprietary information subject to certain duties on
XXXXXXXX’x part to maintain the confidentiality of such information and to
use it only for certain limited purposes. Contractor agrees
that Contractor owes XXXXXXXX and such third parties, during the term of
Contractor’s engagement and thereafter, whatever duty exists between
XXXXXXXX and such third parties to hold all such confidential or
proprietary information in the strictest confidence and not to disclose it
to any person, firm, or corporation (except as necessary in carrying out
Contractor’s work for XXXXXXXX consistent with XXXXXXXX’x agreement with
such third party) or to use it for the benefit of anyone other than for
XXXXXXXX or such third party (consistent with XXXXXXXX’x agreement with
such third party) without written authorization of an authorized officer
of XXXXXXXX.
9. Assignment. The
rights and obligations of Contractor may be assigned upon written notice
to XXXXXXXX thereof, provided that, in XXXXXXXX’x sole discretion and
judgment, such an assignee is acceptable to XXXXXXXX. The
rights and obligations of XXXXXXXX under this Agreement will inure to the
benefit of and will be binding upon the successors and assignees of
XXXXXXXX.
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Consulting Agreement
| 10. Conflicting
Work. Contractor agrees that, during the term of this
Agreement, Contractor will not engage in any other work, consulting, or
other business activity that would create a conflict of interest with
Contractor’s obligations to XXXXXXXX under this Agreement with
XXXXXXXX.
11. Independent
Contractor Relationship. CONTRACTOR’s relationship with
XXXXXXXX will be that of an independent contractor and nothing in this
Agreement should be construed to create a partnership, joint venture, or
employer-employee relationship. Contractor is not the agent of
XXXXXXXX and is not authorized to make any representation, contract, or
commitment on behalf of XXXXXXXX. If Contractor is an
individual, then he or she will not be entitled to any of the benefits
which XXXXXXXX may make available to its employees, including, but not
limited to, group insurance, stock option plans, profit-sharing or
retirement benefits. If applicable, XXXXXXXX will regularly
report amounts paid to Contractor by filing Form 1099-MISC with the
Internal Revenue Service, as required by law. Because
Contractor is an independent contractor, XXXXXXXX will not withhold or
make payments for social security, make unemployment insurance or
disability insurance contributions, or obtain worker’s compensation
insurance on Contractor’s behalf. Contractor will be solely
responsible for, and agrees to accept exclusive liability for, complying
with all applicable foreign, federal and state laws governing
self-employed individuals, including obligations such as payment of taxes,
social security, disability and other contributions based on fees paid to
Contractor or its agents under this Agreement. Contractor
hereby agrees to indemnify and hold harmless the Indemnified Parties
against any and all such taxes or contributions, including penalties and
interest.
12. Governing
Law. This Agreement will be governed and construed in
accordance with the laws of the State of Nevada as applied to transactions
taking place wholly within Nevada between Nevada residents. In
the event of a dispute, the parties agree to mediate in good faith before
a neutral third party agreeable to both parties prior to instituting any
legal action other than injunctive relief, such mediation to take place in
the Xxxxx County, Nevada. Contractor hereby expressly consents
to the exclusive personal and subject-matter jurisdiction of the state and
federal courts located in the Xxxxx County, Nevada, for any dispute
arising from or related to this Agreement.
13. Survival. Any respective
obligations of Contractor or XXXXXXXX hereunder which by their nature
would continue beyond the termination, cancellation or expiration of this
Agreement will survive such termination, cancellation or expiration,
including but not limited to the obligations set forth in the following
provisions: Section 4, Section 5, Section 6,
Section 7, Section 8, Section 11, Section 12,
Section 13, Section 14, Section 16 and
Section 18.
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14. Entire
Agreement; Amendment. This Agreement together with any
subsequent Statements of Work hereunder constitutes the entire agreement
between the parties regarding the services rendered by Contractor to
XXXXXXXX, and this Agreement supersedes all prior or contemporaneous
agreements, commitments, representations, writings, and discussions
between XXXXXXXX and Contractor, whether oral or written. This
Agreement may be amended only by a writing executed by Contractor and an
authorized officer of XXXXXXXX. Contractor expressly
acknowledges that Contractor has read the terms of this Agreement, has had
the opportunity to discuss those terms with his or her own legal counsel,
and understands that this is a legally binding contract.
15. Notices. Any
notice, request, demand or other communication hereunder will be in
writing and will be deemed to be duly given (a) upon actual receipt when
personally delivered to an officer of XXXXXXXX or to Contractor, as the
case may be, (b) three days after deposit in the U.S. Mail by certified or
registered mail, return receipt requested with postage prepaid, or (c)
upon actual receipt or two days after being sent by reputable
international overnight courier, delivery fees prepaid; in each case
addressed to the addresses set forth on the signature page of this
Agreement or to such other address as either party may specify by notice
to the other as provided in this section.
16. Interpretation;
Severability. Section and other headings contained in
this Agreement are for reference only and will not affect the meaning or
interpretation of this Agreement. If any provision of this
Agreement is considered unclear or ambiguous, it will not be construed
against the party that drafted the provision, but instead will be
construed to effectuate the intent of both parties as expressed in this
Agreement.
Should any valid federal or state law or final determination of any
administrative agency or court of competent jurisdiction invalidate or
otherwise affect any provision of this Agreement, any provision so
affected will be conformed automatically and to the extent possible to the
law or determination in question and enforced insofar as possible
consistent with the intent of the parties, and in all events the remaining
provisions of this Agreement will continue in full force and
effect.
17. Counterparts.
This Agreement may be executed in counterparts, each of which will
be deemed to be an original.
18. Attorneys’
Fees. If an action is brought to interpret or enforce the terms of
this Agreement, the prevailing party will be entitled to recover from the
non-prevailing party, in addition to all other remedies at law and equity,
all costs and expenses incurred by the prevailing party with respect to
such action, including but not limited to attorneys’ fees, costs and
disbursements.
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Consulting Agreement
In Witness
Whereof, the parties hereto have caused this Consulting Agreement to be
duly executed as of the first date written above.
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BANCROFTBancroft
Uranium, Inc.:
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Contractor:
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/s/ P. Xxxxxx Xxxxxxx
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/s/ Xxxxxx XxXxxxxx
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Signature
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Signature
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P. Xxxxxx Xxxxxxx
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Xxxxxx XxXxxxxx
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Name
(please print)
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Name
(please print)
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Chief Executive Officer
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Title
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Title
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May 23, 2008
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May 23, 2008
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Date
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Date
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Address
for Notices:
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Address
for Notices:
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XXXXXXXX
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Xxxxxxxx
Uranium, Inc.
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[address omitted]
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0000
Xxxx Xxx xx Xxxxxxx
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Xxxxxxxxxx,
XX 00000
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Phone: (000)000-0000
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Attention: President
& CEO
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Attachments:
Exhibit A—Statement of Work and
Project Schedule
Exhibit B—Payment
Schedule
Exhibit C—Contractor Termination
Certification
Exhibit D—Form of Subsequent
Statement of Work
Signature
Page to
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Consulting Agreement
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Consulting Agreement
EXHIBIT
A
STATEMENT
OF WORK and PROJECT SCHEDULE
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1.
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Title
of Project: Geological Consulting
services.
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2.
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Scope
of Work: For the purpose of this Statement of Work, “Project”
means that within
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Two
Years (2), Contractor will be responsible for creating and performing the
following deliverables and services pursuant to the schedules and
conditions herein described:
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a.
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Scheduling,
agenda, research, protocols, procedures and facilitation for exploration,
staffing, drilling, security, mining liaison work and other full-time
geological activities.
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b.
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Develop
interim detailed drilling plans and complete geological exploration plans
based on the above.
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c.
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Coordination
with trademark, patent counsel and corporate counsel regarding all
elements of intellectual property protection strategy with respect to any
innovations that come from the
work.
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d.
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Complete,
comprehensive research on the top producers and suppliers of uranium,
together with assistance in evaluating potential joint venture partners
and drilling and other partners, as well as the evaluation of potential
end user consumers of uranium.
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e.
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Supervision
of all geological and exploration work across all of XXXXXXXX’x mineral
properties.
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f.
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A
complete geological and drilling strategy in terms of the development of
the Elliot Lake and Longlac properties as well as the identification of
complementary properties for
acquisition.
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3.
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Services
to be Provided: Contractor will be responsible for completing
the Project and providing all services necessary to accomplish the above
goals, including:
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a.
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Continue
to support XXXXXXXX’x drilling, public relations, environmental compliance
and First Nation’s partnership
relationships.
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b.
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All
fees and costs associated with any professional training or licensure
requirements in order to perform the
work.
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c.
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Methodology
for conducting appropriate geological work. This
includes:
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i.
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All
geological survey work and other determinations as a full-time geologist
made to professional standards
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ii.
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daily
contact and as needed office visits with XXXXXXXX personnel to support
exploration and joint-venture
efforts
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iii.
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any
research assistance or meetings needed to be attended anywhere in the
world required to carry out the goals of the
project
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iv.
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any
consultations with geological experts necessary to accomplish the project
goals
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4.
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Project Dates: |
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Project start date: 10/3/07 |
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Project completion date: 10/1/09 |
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5.
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Deliverables and Due Dates: Services have been ongoing since October 3, 2007 and will be ongoing through October 1, 2009. |
Exhibit
A, page 2
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Consulting Agreement
EXHIBIT
B
COMPENSATION
AMOUNT
AND PAYMENT SCHEDULE
Payment
will be due by XXXXXXXX to Contractor in the amounts of $15,000 USD per month of
services rendered to the corporation for geological consulting services rendered
during the term of this Agreement. Contractor will also be entitled
to a stock bonus consisting of 100,000 S-8 registered, free-trading shares per
month for each and every month of services performed by Contractor under this
Agreement. XXXXXXXX may elect to pay the remaining stock bonus
payments due under this Agreement in advance, no later than May 31,
2008. If XXXXXXXX elects to pay the bonuses in advance by that date,
only 83,333 per month in bonuses will be due. XXXXXXXX acknowledges
that as an inducement for Contractor to enter into this Agreement and continue
to provide services, bonus stock payments are due for the eight months of
services previously provided to Contractor without stock
compensation. This means that XXXXXXXX must issue Contractor
2,000,000 free-trading, S-8 registered common shares by May 31, 2008 to take
advantage of this provision.
Any
provision of this Agreement to the contrary notwithstanding, XXXXXXXX may
terminate Contractor at any time or Contractor may quit at any
time. In the event of termination, any unearned cash or stock
compensation will be forfeited by Contractor. In the event of a
termination where Contractor has been paid stock bonuses in advance under this
Agreement, Contractor agrees to return the unearned shares immediately or
compensate XXXXXXXX for the fair market value of the shares in cash as of the
date of termination.
Exhibit
D, page 1
