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EXHIBIT 10(xiv)
CONSULTING SERVICES AGREEMENT
THIS AGREEMENT is entered into effective October 7, 1996, by and
between Nevada Manhattan Mining Inc., a Nevada corporation (hereinafter
"Company"), and Xxxxx Xxxxxxx & Company., Inc., a Delaware Corporation
(hereinafter "Consultant).
1. THE SERVICES: Consultant shall perform for Company the
consulting services (hereinafter the "Services") described in Section A of the
attached Schedule, which Schedule by this reference is incorporated herein.
2. PERFORMANCE SCHEDULE: The Services shall be performed during
the period mentioned in Section B of the Schedule. Company, however, may
terminate this Agreement at any time without cause upon giving Consultant
notice of termination. If Company terminates this Agreement, Company shall pay
Consultant for all work performed and costs incurred by Consultant as a
consequence of such termination.
3. COMPENSATION AND AUDIT: For performance of the Services,
Company shall pay Consultant compensation in accordance with Section C of this
Schedule. Consultant shall maintain records relating to the costs and expenses
for which Consultant seeks reimbursement hereunder including the time spent in
performing the Services. Consultant shall retain such records for a period of
6 months after the termination of this Agreement and Company may, upon request,
audit such records or any other documentation pertaining to the Services;
provided, however, Consultant may exclude its trade secrets from any such audit.
Consultant shall ensure that any firm acting on its behalf in connection with
the Services maintains and retains comparable records for the same period as
required of the Consultant, and permits Company to conduct audits of such
records.
4. INDEPENDENT CONTRACT: In performing the Services, Consultant
shall operate as and have the status of an independent contractor and shall not
act as or be an agent or employee of Company. As an independent contractor,
Consultant will be solely responsible for determining the means, manner, and
method for performing the Services. Company shall have no right to control or
to exercise any supervision over Consultant as to how the Services will be
accomplished.
5. COMPANY'S REPRESENTATIVE: Consultant shall make itself
available at all reasonable times and places to consult with Company in
connection with the Services. Consultant shall report to and consult with
Company through a representative designated by Company (hereinafter "Company's
Representative"). The name of the Company's Representative is set forth in
Section E of the Schedule.
6. WARRANTY: Consultant warrants that its activities will follow
accepted engineering standards.
With respect to Consultant's report and the use thereof by Company,
Company agrees to indemnify, and hold harmless Consultant and its stockholders,
controlling persons, directors, officers,
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employees, Associates and other independent contractors and agents against any
and all losses, claims, damages, liabilities or actions to which they or any of
them may become subject under the Securities Act of 1933, the Securities
Exchange Act of 1934, or any other statute or common law, and to reimburse them
on a current basis for any legal or other expenses incurred by them in
connection with investigating any claims and defending any actions.
Notwithstanding the above, Company will not be liable to Xxxxx Xxxxxxx
if it shall be determined by a court that:
X. Xxxxx Xxxxxxx did not follow accepted engineering standards,
or
B. With regards to securities law claims:
(1) The Xxxxx Xxxxxxx report contains an untrue statement
of a material fact or omits to state a material fact
that is necessary in order to make the statements
therein, in light of the circumstances under which
they were made, not misleading; and
(2) Such statement or omission was not made or omitted in
reliance upon information furnished to the Xxxxx
Xxxxxxx People by Company for use in connection with
the preparation of the Xxxxx Xxxxxxx report.
Any information furnished by Company is a representation or
warranty by Company and Company is responsible for the accuracy and
completeness of such information.
7. INSURANCE: All of the Consultant's activities hereunder shall
be at its own risk, and Consultant shall not be entitled to Workers'
Compensation or other insurance protection provided by Company, nor shall
Consultant be entitled to the benefit of any other plans or programs intended
for Company's employees.
8. INDEMNITY: Consultant shall defend, indemnify and save
Company, its joint venturers, if any, and its affiliated entities and the
directors, officers, employees, and agents of Company, its joint venturers, or
its affiliated entities, harmless from and against any and all losses, claims.
demands. liabilities, suits of actions (including all reasonable expenses and
attorneys' fees) arising out of injuries to or the death of any person or
persons, including the employees of each party hereto and the employees of
those performing on their behalf, or arising out of loss of or damage to the
property of any person or persons, including the property of Company, caused by
or resulting from the acts or omissions of the Consultant or any one performing
on its behalf, except that Consultant assumes no liability for the sole
negligent acts or omissions of Company or another indemnified party.
9. CONFIDENTIALITY: All knowledge and information acquired or
developed by or on behalf of Consultant hereunder shall be and remain the
confidential and proprietary information of Company. All such information
shall be turned over to Company at the termination of this Agreement.
Consultant shall ensure that it and those performing on its behalf maintain
strict security over all knowledge and information acquired or developed by it
during the performance of this
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Agreement and shall not divulge any such knowledge or information directly or
indirectly to any person, other than the authorized representatives of Company,
without the Company's prior written consent.
10. SUBCONTRACTS AND ASSIGNMENTS: Consultant's rights and
obligations hereunder are deemed to be personal and may not be transferred or
assigned, and any attempted assignment shall be void and of no effect.
Consultant shall not subcontract for any part of the Services or obligations
hereunder without the prior written consent of Company. This Agreement may be
assigned by Company, and notice of such assignment shall be given to
Consultant. This Agreement shall be binding upon and inure to the benefit of
Company, its successors and assigns.
11. WAIVER: No change in, addition to, or waiver of any of the
provisions of this Agreement shall be binding upon either party unless in
writing signed by an authorized representative of each party. No waiver by
either party of any breach by the other party of any of the provisions of this
Agreement shall be construed as a waiver of any subsequent breach, whether of
the same or of a different provision in this Agreement.
12. NOTICE: Any notice required or permitted hereunder shall be
deemed to have been properly given when (1) delivered personally to the party
for whom it is intended, (2) seventy-two (72) hours after deposit in the U.S.
Mail (certified and return receipt requested) of an original or confirming
copy, (3) twenty-four (24) hours after entrustment to a professional overnight
courier service, or (4) upon receipt of transmission by facsimile, with all
necessary postage or charges fully prepaid, addressed to the party for whom it
is intended, at the addresses set forth in Section D of the Schedule.
13. SURVIVAL: Notwithstanding the termination of this Agreement,
any duty or obligation which has been incurred and which has not been fully
observed, performed, or discharged, and any right, unconditional or
conditional, which has been created and has not been fully enjoyed, enforced,
or observed, performed, or satisfied (including but not limited to the duties,
obligation, and rights with respect to confidentiality) shall survive such
expiration or termination until such duty or obligation has been fully
observed, or discharged and such right has been enforced, enjoyed, or
satisfied.
14. SEVERABILITY: In the event that any of the provisions, or
portions or applications thereof, of this Agreement are held to be
unenforceable or invalid by any court of competent jurisdiction, Consultant and
Company shall negotiate an equitable adjustment in the provisions of this
Agreement with a view toward effecting the purpose of this Agreement and the
validity and enforceability of the remaining provisions, or portions or
applications thereof, shall not be affected thereby.
15. LIMIT OF LIABILITY: Notwithstanding any other provision of the
Agreement, Consultant's aggregate limit of liability under this Agreement and
Company's exclusive remedy for any eventuality shall not exceed the dollar
value of consultant's xxxxxxxx for services, and neither
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party shall be responsible or held liable to the other for indirect or
consequential damages, including but not limited to loss of profit, loss of
investment, loss of product or business interruption. The warranties,
obligations, liabilities and remedies of the parties, as provided herein, are
exclusive and in lieu of any others available at law, in equity or otherwise.
16. GOVERNING LAW: The provisions of this Agreement will be construed
in accordance with the laws of the State of Colorado. The parties agree that
any action concerning this Agreement must be brought in a court of competent
jurisdiction in the City and County of Denver, State of Colorado, and they do
hereby submit to the jurisdiction of such court regardless of their residence
or where this Agreement may be executed.
17. ENTIRE AGREEMENT: This Agreement including the Schedule
attached hereto sets forth the full and complete understanding of the parties
hereto as of the date hereof relating to the subject matter hereof and
supersedes any and all other agreements or representations, oral or written,
made or dated prior thereto and may be amended only by a written statement
signed by both parties.
In witness whereof, the parties hereto have entered into the Agreement
effective as of the date first above written.
COMPANY:
By: /s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
Senior Vice President
CONTRACTOR:
Xxxxx Xxxxxxx & Company, Inc.
By: /s/ XX X. XX
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Xx X. Xx
Vice President, Corporate Development
Federal Tax ID #00-0000000
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SCHEDULE
SECTION A - SCOPE OF SERVICES
1. The Services to be performed by Consultant under this
Agreement shall be generally as described in this Paragraph 1
below. The primary location for Consultant's performance of
consulting Services shall be Denver, Colorado with supplemental
consulting Services to be performed elsewhere as necessary and
as approved in advance in writing by Company,
2. Scope of Services
The Consultant will be responsible for providing independent
technical advisory services related to the development of the
Abubakar Gold Project, Kalimantan, Indonesia. Initially,
that assignment constitutes advisory and validation services
for geologic exploration program at the subject concession.
Advisory services would also include related technical input
for other aspects of potential project development.
SECTION B - TERM OF THE AGREEMENT
Unless sooner terminated by Company, the term of this Agreement shall
commence as of October 7, 1996 and shall continue for an initial
period of six months or upon satisfactory completion of the Services
prior to such date.
SECTION C - COMPENSATION
1. Consultant's fees are charged on a time basis at the maximum
hourly rate of US$137.50, to a maximum of $1,100.00 per day.
a. A minimum of two (2) days per month will be paid by
the Company to the Consultant for the six month
duration of this contract. Unused days will accrue
until the end of the six month period, as which time,
if not used will be forfeited by the Company.
2. In addition to payments for Services, Company will reimburse
Consultant for the following expenses incurred in the
performance of the Services under this Agreement:
(a) Travel undertaken in the performance of Services
hereunder;
(b) Reasonable and necessary expenses incurred by
Consultant for food and lodging associated with (a)
above;
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(c) Telegram, cable, and telex charges. In lieu of
itemizing telephone charges, and to offset costs of
computers, a flat 2.5% of labor fees will be assessed
as usage charges;
(d) Prints, reproductions, copies and facsimiles;
(e) Postage, courier express, air express, and air
freight charges;
(f) Use of personal automobiles or vehicles at the rate
established by Consultant;
(g) Royalties on computer software;
(h) Professional liability insurance. A fee of 1.5% of
labor fees will be assessed to offset this cost;
(i) Clerical fees at $35 per hour; and
(j) Other costs and expenses incurred in the performance
of Services hereunder,
3. Invoices will be sent to Company monthly and are due upon
receipt. Invoices not paid within 30 days of the date of
invoice are subject to a late fee of 1.5% per month.
4. If charges and reimbursable expenses are not paid when due and
collection proceedings are required, Company agrees to pay all
of Consultant's costs and collection including the actual
legal fees incurred by Consultant.
SECTION D - NOTICES
Notices to Company shall be sent to:
Xxxxxxx X. Xxxxxx, Xx. Vice President
Nevada Manhattan Mining, Inc.
0000 X. Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
(000) 000-0000, (000) 000-0000 (fax)
With a copy concurrently to:
Xxxxxxx X. Xxxxxx
Nevada Manhattan Mining, Inc.
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
(000) 000-0000, (000) 000-0000
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Notices to Consultant shall be sent to:
Xx X. Xx
Xxxxx Xxxxxxx Co., Inc.
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
(000) 000-0000, (000) 000-0000 (fax)
SECTION E - COMPANY'S REPRESENTATIVE
Company's Representative is Xxxxxxx X. Xxxxxx or such party as may be
designated in writing by the Company.
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