THORIUM POWER, LTD. CONSULTING AGREEMENT
Exhibit
10.1
CONSULTING
AGREEMENT, dated as of January 1, 2007 (the “Agreement”), by and between THORIUM
POWER, LTD., a Nevada corporation, having its principal place of business at
0000 Xxxxxxxxxx Xxxxx, Xxxxx 000, XxXxxx, XX 00000 (“Company”) and SEC Audit
Prep, Inc. (“Consultant”).
BACKGROUND
Company
desires to retain Consultant to perform the Services (as defined below) and
Consultant desires to perform the Services for Company subject to the terms
and
conditions set forth below. This agreement supersedes the previous consulting
agreement between the Consultant and Novastar Resources Ltd.
NOW,
THEREFORE, in consideration of the premises and mutual covenants hereinafter
contained, the parties hereto intending to be legally bound hereby agree as
follows:
1.
THE SERVICES.
Subject
to the terms of this Agreement, Consultant agrees to act as a consultant on
behalf of Company and perform the following services ( the
“Services”):
The
Consultant will be the Treasurer and Acting Chief Financial Officer of the
Company for a period of time until a Chief Financial Officer is appointed.
After
a Chief Financial Officer is appointed, the Consultant will become the Treasurer
and Financial Consultant providing financial consulting services such as
processing all bills for payment and maintaining the company’s books and
records, preparing monthly reports for management and the Board, preparing
quarterly and annual Securities Exchange Act of 1934 reports, review significant
events and changes of accounting rules that effect the company, interface with
the auditors in answering questions and assisting them in getting their work
completed timely, participate in audit committee meetings and answer audit
committee questions, perform an internal audit function where needed, and
working to institute the highest level of corporate governance for the Company,
as well as other functions customary to the office of Treasurer. In addition,
the Consultant shall help perform the SOX 404 compliance work and prepare the
audit and quarterly review preparation binders for the external auditors and
such other similar tasks as the Company may request. Any M&A work, due
diligence work or other special projects outside the scope of the above
mentioned services will be charged at a mutually agreeable hourly
rate.
2.
TERM.
The
initial term of this Agreement shall be for a period of two years; provided,
however, that this Agreement shall automatically be extended for additional
periods of one (1) year unless terminated by either party in accordance with
Section 5. In the event of the termination of this Agreement, Consultant shall
promptly return to Company any and all documents or materials in whatever form
or medium, and all copies made thereof, which Consultant received from Company
for purposes of this Agreement, as well as all Work Product as defined and
described in Section 6 of this Agreement.
3.
FEES AND REIMBURSEMENT OF CERTAIN EXPENSES.
| a. |
Company
shall pay Consultant a consulting fee (the “Fee”) to SEC Audit Prep, Inc.
equal to a monthly fee of $16,000 for Services performed. The Fee
shall be
payable per invoice every month, no later than the 10th business
day
following the receipt by Company from the Consultant of an invoice.
The
Consultant shall be paid a Fee for a minimum of $16,000 whether or
not the
Company still requires the Consultant to perform all the Services
mentioned above during the contract
term.
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| b. |
The
Company shall grant to the Consultant a nonqualified stock option
for the
purchase of 150,000 shares of the Company’s common stock. The option’s
exercise price will be equal to the fair market value of the Company’s
Common Stock on the date of grant. The option shall vest in equal
monthly
installments over a three (3) year period. If the Consultant is terminated
without cause or if there is a change of control of the Company,
then the
option shall vest immediately. The term of the option shall be ten
years.
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| c. |
Upon
termination of this Agreement for any reason, Consultant expressly
understands and agrees that Company’ sole obligation shall be to pay
Consultant the Fee for Services rendered through the effective date
of
termination or expiration, including any mandatory notice
period.
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| d. |
Reimbursement
of any reasonable travel expenses, if any, shall be made according
to
Company’ corporate policy; provided, however, that in no event shall the
Fee be paid for travel time. Consultant shall be reimbursed for other
reasonable and necessary expenses actually incurred or paid by Consultant
during the term or any extension thereof in the performance of the
Services within twenty (20) business days of the submission and approval
by Company of expense statements, vouchers, or other supporting
information reasonably acceptable to Company. Any travel expenses
in
excess of $2,000 in each instance shall require prior approval by
the
Company.
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| e. |
Consultant
shall not be entitled to participate in any fringe benefits or privileges
given or extended by Company to its officers and employees, including
without limitation, medical benefits, retirement plans or stock options.
Consultant shall be responsible for the payment of all federal, state
and
local taxes including, without limitation, withholding and sales
taxes,
and, at the request of Company, Consultant shall provide to Company
evidence that all of such payments have been made. Such evidence
may
include, at Company’ option, a written statement by Consultant that
Consultant has timely and appropriately paid and withheld all appropriate
taxes. Consultant warrants and represents that Consultant has complied
with, and covenants that during the term of this Agreement or any
extension thereof, Consultant shall continue to comply with all laws,
rules and regulations required by appropriate government authorities
for
independent contractors, including the appropriate withholding, reporting
and payment of all required taxes. Consultant shall indemnify and
hold
Company harmless from and against any claims, damages, debts, obligations,
liabilities and expenses (including, without limitation, attorney’s fees
and expenses and court costs) arising out of Consultant’s failure to
perform any covenant contained in, or Consultant’s breach of any
representation or warranty set forth in, this
Section.
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4.
DUTIES AND EXTENT OF SERVICES
Upon
the
execution of this Agreement and throughout its term or any extension thereof,
Consultant shall assume the position of Treasurer and Financial Consultant
to
Company and the Consultant shall be available at all times necessary or
appropriate in order for Consultant to effectively perform the Services.
Consultant shall exert Consultant’s best efforts and attention to the affairs of
Company. Consultant shall notify Company promptly of any other engagement or
commitment which could reasonably be expected to interfere or conflict with
the
performance of Services hereunder.
The
work
performed above will be done on an as-needed hourly basis, which limits our
involvement and knowledge of the daily operations of the company. Because of
this, there is a risk that material errors, irregularities, or illegal acts,
including fraud or defalcation, may exist and may not be detected by us. By
signing below the company acknowledges this fact and agrees to indemnify us
should any of the above situations occur.
5.
TERMINATION
Consultant’s
engagement hereunder shall terminate at the end of the term or any extension
thereof as set forth in Section 2 hereof or sooner upon the occurrence of any
of
the following events:
| a. |
The
termination of Consultant hereunder by Company at its option, for
any
reason or no reason, to be exercised by 270 days written notice from
Company to Consultant.
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| b. |
Consultant’s
death.
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| c. |
Upon
delivery of written notice by Company to Consultant if Consultant
materially breaches this Agreement; provided that the Company gives
the
Consultant a description of the material breach and at least twenty
days
to cure the breach.
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6.
LIMITED LIABILITY
Consultant
shall not be liable to the Company, or to anyone who may claim any right due
to
its relationship with the Company, for any acts or omissions on the part of
the
Consultant or the agents or the employees of the Consultant in the performance
of Consultant’s services under this agreement. THORIUM POWER, LTD. shall hold
Consultant free and harmless from any obligations, costs, claims, judgments,
attorney’s fees, or attachments arising from or growing out of the services
rendered to the Company.
7.
INDEMNIFICATION
THORIUM
POWER, LTD. Agrees to indemnify and save harmless the Consultant, as well as
Consultant’s officers, employees, and agents from all suits, actions, losses,
damages, claims, or liability of any character, type or description, including
without limiting the generality of the foregoing all expenses of litigation,
court costs, and attorney’s fees arising out of or occasioned by the acts of
THORIUM POWER, LTD., its agents or employees, or occasioned by the acts of
Consultant in the execution or performance of the services provided by the
Consultant, at any time from the execution date of this Agreement until such
time after any pertinent limitations period expires after he termination of
this
Agreement.
As
a part
of this indemnification, THORIUM POWER, LTD. agrees to defend and hold harmless
Consultant from and against any and all liabilities, excluding gross negligence
on the part of the Consultant, arising from the consulting agreement. As such,
Consultant shall not be liable to THORIUM POWER, LTD., or anyone who may claim
any right due to its relationship with THORIUM POWER, LTD., for any acts or
omissions, other than gross negligence, on the part of the Consultant or the
agents or employees of the Consultant in the performance of Consultant’s
services under this Agreement. THORIUM POWER, LTD. shall hold Consultant free
and harmless from any obligation, costs, claims, judgments, attorney’s fees, or
attachments arising from or growing out of the services rendered to the
Company.
8.
WORK
FOR HIRE
| a. |
The
parties acknowledge and agree that all rights, including without
limitation ownership, patent and copyright, in any software, materials,
reports (including, without limitation, report books, reference materials
and other literature relating to Company’ products or services or
otherwise related to the Services), memoranda, graphics, logos or
other
work product prepared by Consultant pursuant to the terms of this
Agreement, or otherwise for Company (hereinafter the “Work Product”) vest
in Company. The parties expressly acknowledge that the Work Product
was
specially ordered or commissioned by Company and further agree that
it
shall be considered a “Work Made for Hire” within the meaning of the
copyright laws of the United States and that Company is entitled,
as sole
author, to the copyright and all other rights therein, throughout
the
world, including but not limited to, the right to make such changes
therein and such uses thereof, as it may determine in its sole and
absolute discretion. If, for any reason, the Work Product is not
considered a “work made for hire” under the copyright laws of the United
States as aforesaid, then Consultant hereby grants and assigns to
Company,
its successors and assigns, all of Consultant’s right, title and interest
in the Work Product, including, but not limited to, the copyright
therein
throughout the world (and any renewal, extension or reversion copyright
now or hereafter provided), and all other rights therein of any nature
whatsoever, whether now known or hereafter devised including, but
not
limited to, the right to make changes therein, and such uses thereof,
as
Company may determine in its absolute discretion. Consultant also
agrees
to keep necessary records, made alone or with others during the course
of
performing Services pursuant to this Agreement, and agrees to furnish
Company, upon request, with all such
records.
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| b. |
If
Company is unable, after reasonable effort, to secure Consultant’s
signature on any application for patent, copyright, trademark or
other
analogous registration or other documents regarding any legal protection
relating to a Work Product, whether because of Consultant’s physical or
mental incapacity or for any other reason whatsoever, Consultant
hereby
irrevocably designates and appoints Company and its duly authorized
officers and agents as Consultant’s agent and attorney-in-fact, to act for
and in Consultant’s behalf and stead to execute and file any such
application or applications or other documents and to do all other
lawfully permitted acts to further the prosecution and issuance of
patent,
copyright or trademark registrations or any other legal protection
thereon
with the same legal force and effect as if executed by
Consultant.
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9.
PROPRIETARY
INFORMATION
| a. |
For
purposes of this Agreement, “proprietary information” means information
relating to the business of Company or any affiliated or subsidiary
entity
and shall include (but shall not be limited to) information encompassed
in
all Work Product, specifications, drawings, graphics, logos, designs,
computer programs, source code, object code, models, methodologies,
algorithms, user documentation, plans, formulas, proposals, marketing
and
sale plans, financial information, costs, pricing information, customer
information, and all methods, concepts or ideas in or reasonably
related
to the business of Company or information of customers or clients
of
Company which Company is required to maintain as
confidential.
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| b. |
Consultant
agrees to regard and preserve as confidential, all proprietary
information, whether or not it has such information in writing, other
physical or magnetic form or such information is contained in Consultant’s
memory or the memory of any of Consultant’s agents or employees.
Consultant shall not, without written authority from Company to do
so,
directly or indirectly, use for the benefit or purpose, nor disclose
to
any other person or entity, either during the term of Consultant’s
engagement hereunder or thereafter, except as required by the conditions
of Consultant’s engagement hereunder, any proprietary
information.
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| c. |
Consultant
shall not disclose any reports, recommendations, conclusions or other
results of the Services or the existence or the subject matter of
this
contract without the prior written consent of Company. In Consultant’s
performance hereunder, Consultant shall comply with all legal obligations
Consultant may now or hereafter have regarding the information or
other
property of any other person, firm or
corporation.
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| d. |
The
foregoing obligations of this Paragraph shall not apply to any part
of the
information that (i) has been disclosed in publicly available sources
of
information, (ii) is, through no fault of Consultant, hereafter disclosed
in publicly available sources of information, (iii) can be demonstrated
to
Company’ satisfaction that it is now in the possession of Consultant
without any obligation of confidentiality, or (iv) has been or is
hereafter lawfully disclosed to Consultant by a third party, but
only to
the extent that the use or disclosure thereof has been or is rightfully
authorized by that third party.
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10.
NO
SOLICITATION AND COVENANT NOT TO COMPETE
| a. |
During
the period commencing on the date hereof and ending two (2) years
after
the termination of Consultant’s engagement for any reason (the “Restricted
Period”), Consultant shall not directly or indirectly induce, solicit,
persuade or entice or attempt to induce, solicit, persuade or entice
any
of the employees, consultants or agents of Company to leave the employment
of Company or to terminate the consultancy or agency relationship
with
Company, as the case may be.
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| b. |
During
the Restricted Period, Consultant shall not, without the written
consent
of a duly authorized officer of Company: (i) directly or indirectly,
whether as principal, agent, stockholder, or in any other capacity,
have a
financial interest in any company or enterprise which is in competition
with any business actively conducted by Company or any of its subsidiaries
or affiliates; provided, however, that this shall not be deemed to
preclude Consultant from owning not more than 1% of the stock or
securities of any corporation, the shares of which are registered
under
Section 12 of the Securities Exchange Act of 1934, as amended or
(ii)
directly or indirectly, whether as principal, agent, stockholder,
employee, consultant or in any other capacity, provide any services
to any
company or enterprise which would result in competition with the
services,
products and technologies sold, licensed or being developed or planned
or
otherwise contemplated by Company or any of its subsidiaries or affiliates
at the time of the termination of this
Agreement.
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| c. |
During
the Restricted Period, the Consultant shall not, directly or indirectly,
induce, solicit, persuade or entice or attempt to induce, solicit
persuade
or entice any person who is then or has been within the preceding
12-month
period a customer or account of Company or any of its affiliates,
or any
actual customer leads whose identity the Consultant learned of during
the
term of this Agreement or any extension thereof , to terminate or
to
adversely alter its contractual or other relationship with Company
or any
of its affiliates.
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| d. |
During
the term or any extension thereof the Consultant shall promptly disclose
to Company any business idea or opportunity which falls within Company’
line of business or any logical extension thereof, which business
idea or
opportunity shall become the sole property of
Company.
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| e. |
Consultant
hereby agrees that each provision herein shall be treated as a separate
and independent clause, and the unenforceability of any one clause
shall
in no way impair the enforceability of any of the other clauses of
the
Agreement. Moreover, if one or more of the provisions contained in
this
Agreement shall for any reason be held to be excessively broad as
to
scope, activity, subject or otherwise so as to be unenforceable at
law,
such provision or provisions shall be construed by the appropriate
judicial body by limiting or reducing it or them so as to be enforceable
to the maximum extent compatible with the applicable law as it shall
then
appear. Consultant hereby further agrees that the language of all
parts of
this Agreement shall in all cases be construed as a whole according
to its
fair meaning and not strictly for or against either of the
parties.
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11.
INJUNCTIVE
RELIEF
Consultant
acknowledges that the injury to Company resulting from any violation by
Consultant of any of the covenants contained in this Agreement will be of such
a
character that Company cannot be adequately compensated by money damages, and,
accordingly, Company may, in addition to pursuing its other remedies, obtain
an
injunction from any such violation; and no bond or other security shall be
required in connection with such injunction.
12.
NOTICES
Any
notice of other communication required or which may be given hereunder shall
be
in writing and shall be delivered personally, telecopied, telegraphed or
telexed, or sent by certified, registered or express mail, postage prepaid,
to
the parties at the addresses set forth in the preamble of this Agreement, or
at
such other addresses as shall be specified by the parties by like notice, and
shall be deemed given when so delivered personally, telecopied, telegraphed
or
telexed, or if mailed, two days after the date of mailing.
13.
NO RESTRICTIONS
Consultant
represents to Company, which relies on such representation, that Consultant
is
free to enter into this Agreement in that Consultant is not under any
restrictions from a former employer or business that would preclude Consultant’s
from making these agreements. Consultant understands that Company does not
want
Consultant to disclose to it any confidential information that Consultant may
have obtained from a former employer, although Consultant is free to use
Consultant’s general knowledge and past experience in the performance of the
Services.
14.
GENERAL CONDITIONS
| a. |
The
terms and conditions of Paragraphs 3E, 6, 7, 8, 9, 10, 11 and 12
hereof
shall survive the termination of this Agreement or completion of
the
Services as the case may be.
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| b. |
Consultant
shall not assign this Agreement or delegate Consultant’s duties hereunder
and shall not subcontract any of the Services to be performed hereunder
without the prior written consent of Company. The Consultant may,
however,
provide Services hereunder through SEC Audit Prep, Inc., an entity
controlled by the Consultant, and in such case, Fee payments shall
be made
to such entity; provided, however, that in such event, the Consultant
shall continue to be the primary provider of the
Services.
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| c. |
Consultant
shall perform the Services as an independent contractor and shall
not be
considered an employee of Company or partner, joint venture or otherwise
related to Company for any purpose. Accordingly, Consultant may not
bind
Company to any contract, agreement or
arrangement.
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| d. |
Consultant
shall not trade the Company’s stock on insider information the Consultant
may learn in the course of performing his services under this Agreement.
The Consultant agrees to disclose in writing to the Company any changes
in
the Consultant’s ownership position with respect to the Company’s stock
within five (5) business days after an event involving acquisition
or
disposition of the Company’s stock
occurs.
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| e. |
This
Agreement shall be governed by the laws of the State of New York,
without
regard to its conflicts of laws.
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| f. |
This
Agreement constitutes the entire understanding between the Consultant
and
Company respecting the Services described
herein.
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| g. |
This
Agreement may be executed in two or more counterparts, each of which
shall
be deemed an original, but all of which together shall constitute
one and
the same instrument.
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| h. |
Facsimile
execution and delivery of this Agreement is legal, valid and binding
execution and delivery for all
purposes.
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| i. |
The
Consultant shall be primarily based in New York; however, the Consultant
will travel back and forth to the Washington, DC area, where the
executive
offices of the Company are based, on an as needed basis. The Consultant
expects to travel to Washington, DC at least one time per
month.
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[signature
page follows]
IN
WITNESS WHEREOF, the parties hereto have duly executed this Consulting Agreement
as of the date first above written.
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Treasurer
and Financial Consultant
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Xxxxx
Xxxxxxx
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By:
/s/ Seth Grae
Name:
SETH GRAE
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By:
/s/ Xxxxx Xxxxxxx
Name:
SEC Audit Prep, Inc.
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Title:
President and Chief Executive Officer
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Title:
President
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