Nuclear Energy Program Consulting and Strategic Advisory Agreement by and between EMIRATES NUCLEAR ENERGY CORPORATION and THORIUM POWER, LTD. August 1, 2008
Nuclear
Energy Program
Consulting
and Strategic Advisory
Agreement
by
and
between
EMIRATES
NUCLEAR ENERGY CORPORATION
and
August
1, 2008
TABLE
OF CONTENTS
|
1 CONSULTING
AND STRATEGIC ADVISORY SERVICES
|
6
|
|
|
1.1
|
Thorium
Power Services
|
6
|
|
1.2
|
Thorium
Power Resources
|
6
|
|
1.3
|
ENEC
Resources and Support
|
7
|
|
1.4
|
Compensation
|
7
|
|
1.5
|
Quarterly
Reviews
|
7
|
|
2 STAFF
MANAGEMENT
|
8
|
|
|
2.1
|
Objective
|
8
|
|
2.2
|
Recruiting
of personnel
|
8
|
|
2.3
|
Transfer
of Personnel
|
8
|
|
2.4
|
Non-Solicitation
|
9
|
|
3 TERM
AND TERMINATION
|
9
|
|
|
3.1
|
Term
|
9
|
|
3.2
|
Termination
for Default
|
9
|
|
3.3
|
Termination
for Convenience
|
10
|
|
4 CONFIDENTIALITY
|
10
|
|
|
4.1
|
Definition
of Confidential Information
|
10
|
|
4.2
|
Obligation
of Confidentiality and Non-Use
|
10
|
|
4.3
|
Obligation
to Inform
|
11
|
|
4.4
|
Exceptions
to Confidential Information
|
11
|
|
4.5
|
Requests
for Disclosure
|
11
|
|
4.6
|
Return
or Destruction of Confidential Information
|
11
|
|
4.7
|
No
waiver
|
12
|
2
|
5 INTELLECTUAL
PROPERTY
|
12
|
|
|
5.1
|
Ownership
of Intellectual Property
|
12
|
|
5.2
|
Further
Assurances
|
12
|
|
6 LIMITED
WARRANTY AND DISCLAIMER
|
13
|
|
|
7 DISCLAIMERS
AND LIMITATIONS OF LIABILITY
|
13
|
|
|
7.1
|
Disclaimer
of Consequential Damages
|
13
|
|
7.2
|
Liability
Cap
|
13
|
|
7.3
|
Applicability
|
13
|
|
7.4
|
Acknowledgement
|
13
|
|
8 INDEMNIFICATION
|
14
|
|
|
9 INDEPENDENT
CONTRACTOR STATUS
|
14
|
|
|
10 COMPLIANCE
WITH LAWS
|
15
|
|
|
11 NOTICES
|
15
|
|
|
12 CHOICE
OF LAW AND DISPUTE RESOLUTION
|
17
|
|
|
12.1
|
Governing
Law.
|
17
|
|
12.2
|
Mediation
of Disputes.
|
17
|
|
12.3
|
Resolution
of Disputes.
|
17
|
|
12.4
|
Decision.
|
18
|
|
12.5
|
Discovery.
|
18
|
|
12.6
|
Submission
to Jurisdiction.
|
18
|
|
12.7
|
Fees;
Expenses.
|
18
|
|
12.8
|
Amendment
to LCIA Rules
|
18
|
|
12.9
|
Agents
for Service of Process
|
19
|
3
|
13 NATURE
OF AGREEMENT
|
19
|
|
|
14 FORCE
MAJEURE
|
19
|
|
|
15 INSURANCE
|
20
|
|
|
16 LICENSES
AND TAXES
|
20
|
|
|
17 QUALITY
ASSURANCE PROCEDURES
|
20
|
|
|
17.1
|
Subcontractor
Quality Assurance Procedures
|
21
|
|
17.2
|
Non-conformances
|
21
|
|
17.3
|
Adequacy
of Methods and Equipment
|
21
|
|
18 LABOR
AND IMMIGRATION LAWS
|
21
|
|
|
19 TRAINING
OF EMPLOYEES
|
21
|
|
|
20 SAFETY
CULTURE
|
22
|
|
|
21 CODE
OF ETHICS
|
22
|
|
|
22 SAFEGUARDS
INFORMATION
|
23
|
|
|
23 NUCLEAR
LIABILITY PROTECTION
|
23
|
|
|
24 MISCELLANEOUS
|
23
|
|
|
24.1
|
Assignment
|
23
|
|
24.2
|
No
Third Party Beneficiaries
|
24
|
|
24.3
|
Survival
|
24
|
|
24.4
|
Headings
|
24
|
|
24.5
|
Amendments
or Modifications
|
24
|
|
24.6
|
Reproduction
of Documents
|
24
|
|
24.7
|
Severability
|
24
|
|
24.8
|
Contract
Construction
|
25
|
|
24.9
|
Entire
Agreement
|
25
|
|
24.10
|
Counterparts
|
25
|
|
ATTACHMENT
A - STATEMENT OF WORK
|
27
|
|
ATTACHMENT
B - THORIUM POWER RESOURCES
|
28
|
|
29
|
|
|
ATTACHMENT
D – COMPENSATION
|
30
|
4
WITH
Emirates
Nuclear Energy Corporation
THIS
CONSULTING AND STRATEGIC ADVISORY AGREEMENT,
including ATTACHMENTS
A through D,
that
are incorporated by reference, (this “Agreement”) is made as of August 1, 2008
(the “Effective Date”), by and between Thorium Power, Ltd., a Nevada
corporation, having its principal offices at 0000 Xxxxxxxxxx Xxxxx, Xxxxx
000,
XxXxxx, XX 00000, XXX (“Thorium Power”), and Emirates Nuclear Energy
Corporation, an [entity] of the Emirate of Abu Dhabi (“ENEC”). The parties are
individually referred to as the “Party” and collectively as the
“Parties.”
RECITALS
|
A.
|
ENEC
is in the process of being formed to manage activities related
to planning
and implementation of nuclear energy in the
UAE;
|
|
B.
|
Thorium
Power has been providing consulting and strategic advisory services
to the
Executive Affairs Authority of Abu Dhabi for the evaluation and
development of a nuclear energy program in the United Arab Emirates
(“UAE”) under two previous agreements (listed in Recitals
C
and D
below), entered into with the Executive Affairs Authority of Abu
Dhabi
(“EAA”);
|
|
C.
|
ENEC
wishes to implement the -“Roadmap” that was provided by Thorium Power
under the Professional Services Agreement of 30 November 2007 with
the EAA
and prepare for the continued evaluation of and, if such evaluation
is
successful, the procurement and construction of nuclear power plants
in
the UAE;
|
|
D.
|
On
17 March 2008, EAA and Thorium Power entered into Amendment Number
1 to
the Professional Services Agreement of 30 November 2007, to provide
for
early start of implementation of certain high-priority activities
that
were identified in the Roadmap (“Quick-Start
Amendment”);
|
|
E.
|
Thorium
Power maintains access to specialized expertise for providing consulting
and strategic advisory services to ENEC for the purpose of evaluating
and,
if relevant, developing a nuclear energy program in the UAE;
and
|
|
F.
|
ENEC
desires to obtain Thorium Power’s services as an advisor in the design,
implementation and management of the country’s nuclear energy program, and
to support certain project management and execution activities
related to
developing the program as described in the Roadmap, where ENEC
forms a key
part of the UAE Nuclear Energy Program Implementation Organization
(“NEPIO”).
|
5
NOW,
THEREFORE,
in
consideration of the premises and mutual covenants contained herein and
intending to be legally bound hereby, Thorium Power and ENEC agree as
follows:
| 1 |
Consulting
and Strategic Advisory Services
|
| 1.1 |
Thorium
Power Services
|
Thorium
Power shall provide the following services to ENEC:
|
·
|
Act
as strategic advisor to ENEC and other UAE Government entities
designated
by ENEC on civilian nuclear energy matters, based on priorities
set by
ENEC from time to time.
|
|
·
|
Support
the creation of ENEC and its ongoing project management & project
execution activities in relation to the evaluation and, if relevant
development of the nuclear energy program of the UAE, where ENEC
has the
responsibility to oversee the implementation of the nuclear energy
program
of the UAE as a key part of NEPIO. The services will generally
be guided
by the Roadmap with subsequent modifications of implementation
objectives
as agreed from time to time between the
Parties.
|
A
detailed description of the services (‘Services”) is provided in ATTACHMENT
A -
STATEMENT OF WORK,
which
may be modified from time to time by agreement between the Parties as described
below.
Thorium
Power shall determine, in its best judgment and in consultation with ENEC,
the
method and manner of providing its Services towards meeting the program
objectives of ENEC and plans outlined in the Roadmap.
| 1.2 |
Thorium
Power Resources
|
In
order
to provide the Services, Thorium Power shall provide the resources as described
in ATTACHMENT
B-
THORIUM POWER RESOURCES,
which
may be amended from time to time by agreement between the Parties as described
in Section
1.5
(Quarterly
Reviews).
In
the
case ENEC wishes to increase the amount of Services and corresponding resources
provided by Thorium Power, the Parties will agree on the time plan for such
changes, and Thorium Power will use its best efforts to provide the resources
according to the plan.
In
the
case ENEC wishes to reduce the amount of Services and corresponding resources
provided by Thorium, ENEC shall give Thorium Power four (4) weeks notice
to this
effect, and shall pay Thorium Power at the prevailing rate for Services and
corresponding expenses during such notice period. In the case such reduction
of
resources during any consecutive three (3) month period exceeds fifty percent
(50%) of the prevailing total resource xxxxxxxx for Thorium Power Resources
at
the beginning of the period, ENEC shall compensate Thorium Power for the
group
of resources corresponding to such reduction in the same manner as described
in
Section
3.3
(Termination
for Convenience);
provided however, that no such “Termination for Convenience” compensation will
be required in the case that Thorium Power’s resources providing Services [do
not exceed five (5) full-time equivalents.]
6
| 1.3 |
ENEC
Resources and Support
|
ENEC
will
use its reasonable endeavours to provide the resources, facilitate the provision
of resources from other UAE Government entities, perform the tasks and provide
the support to Thorium Power as described in ATTACHMENT
C–
ENEC
SUPPORT,
which
may be amended from time to time by agreement between the Parties as described
in Section
1.5
(Quarterly
Reviews).
Provided that breach of this obligation shall only entitle Thorium Power
to
relief from its obligations to perform the Services to the extent such
obligations cannot be performed as a result of such breach and it shall not
be
entitled to any other remedies or compensation.
| 1.4 |
Compensation
|
Thorium
Power shall receive compensation and invoice ENEC in accordance with
ATTACHMENT D–
COMPENSATION.
| 1.5 |
Quarterly
Reviews
|
Thorium
Power will plan and facilitate quarterly reviews of the activities of the
Parties under this Agreement, where the Parties will:
|
·
|
Meet
at a location agreed by the Parties (in Abu Dhabi unless agreed
otherwise
by the Parties).
|
|
·
|
Review
the performance of ENEC departments, Thorium Power, other key vendors
and
other entities as relevant to the activities of the Parties under
this
Agreement , in relation to the program schedule, budget and other
program
objectives & policies; and Thorium Power shall prepare a written
report in advance of the review on these topics.
|
|
·
|
Modify,
as appropriate and as agreed between the Parties, the program schedule,
budget or other objectives, and correspondingly agree on updates
to the
Services.
|
|
·
|
Review
the staffing needs for the activities of the Parties under this
Agreement
(including Thorium Power’s resources) and agree on staffing changes as
described in Article
2
(Staff
Management).
|
|
·
|
Review
proposals for new or modified 3rd
party service providers and equipment vendors.
|
|
·
|
Update,
as appropriate and as agreed between the Parties, the information
included
in Attachments
A through D,
as well as the names of individuals excluded from transfer to ENEC
under
the provisions of Clause 2.3 of this
Agreement.
|
7
| 2 |
Staff
Management
|
| 2.1 |
Objective
|
The
overall objective of this Agreement is the development of an exemplary nuclear
energy program in the UAE according to the plans outlined in the Roadmap.
Thorium Power and ENEC will cooperate to balance the need for speed of
implementing the nuclear energy program in the UAE, the need for experienced
experts at all stages of the program, the need to develop a cadre of domestic
experts over time, and the need to manage resource costs.
| 2.2 |
Recruiting
of personnel
|
Thorium
Power will support ENEC in direct hiring of nuclear related personnel by
ENEC.
| 2.3 |
Transfer
of Personnel
|
As
part
of managing the staffing of the nuclear program, Thorium Power shall, if
and to
the extent directed by ENEC, over time, provide for a structured transfer
of
certain Thorium Power staff from its payroll into a direct contractual
relationship with ENEC. The Parties shall discuss and agree on the need for
such
transfers during the regular program reviews described in Section
1.5
(Quarterly
Reviews).
If,
from
time to time, ENEC directs that there is to be the transfer of any staff
in
accordance with this Section 2.3, the provisions for the transfer of such
staff
from Thorium Power’s payroll to ENEC’s payroll shall be as follows:
| · |
Thorium
Power shall cooperate in the transfer of eligible
staff.
|
| · |
Employment
or consulting agreements between Thorium Power and transferring
personnel
shall be modified to the extent agreed between ENEC and the relevant
personnel immediately prior to transfer and Thorium Power shall
waive
applicable portions of non-compete provisions to facilitate the
provisions
of this Agreement.
|
| · |
No
Thorium Power employees shall be eligible for transfer within twelve
(12)
months of the Effective Date. For the avoidance of doubt this does
not
apply to consultants to or agents of Thorium
Power.
|
| · |
Any
employees of Thorium Power or its subsidiaries as
set out in the side letter dated July 7, 2008 and signed by the
President
of Thorium Power shall
only be eligible for transfer with the approval of Thorium Power.
|
| · |
ENEC
shall provide three (3) months notice (“Transfer Notice Period”) to
Thorium Power of the intention to hire Thorium Power staff
directly.
|
| · |
Following
the transfer notice, ENEC shall continue to pay Thorium Power for
the
resource during the Transfer Notice Period at the prevailing rate
at the
time of notice.
|
8
| · |
Upon
the effective transfer from Thorium Power’s payroll, ENEC shall pay
Thorium Power a transfer fee of thirty three percent (33%) of the
individual’s new first twelve (12) months cash compensation (including
salary and bonus target), plus reasonable costs as agreed to by
the
Parties to cover Thorium Power’s recruiting, training, administrative and
overhead expenses.
|
| · |
No
more than twenty five percent (25%) of Thorium Power’s employees as
committed to ENEC under this Agreement during any 12 month period
can be
transferred over the subsequent twelve (12) month period. For the
avoidance of doubt, this paragraph does not apply to consultants
to or
agents of Thorium Power.
|
| · |
In
order to maintain stability in the project, ENEC shall not discuss
offers
of employment, directly or indirectly, with Thorium Power employees
without prior consultation with Thorium
Power.
|
| 2.4 |
Non-Solicitation
|
Except
as
provided in this Article
2
(Staff
Management),
during
the period commencing on the date hereof and ending one (1) year after the
termination of Thorium Power’s engagement under this Agreement or any extension
thereof (the “Restricted Period”), ENEC and its affiliates shall not directly or
indirectly induce, solicit, persuade or entice or attempt to induce, solicit,
persuade or entice any of the employees, of Thorium Power that were directly
engaged in the provision of the Services to ENEC to leave the employment
of
Thorium Power. For the avoidance of doubt, this provision does not apply
in
relation to any consultants to or agents of Thorium Power.
| 3 |
Term
and Termination
|
| 3.1 |
Term
|
The
term
of this Agreement shall be five (5) years after the Effective Date unless
earlier terminated as described below. Provided, however, that absent a
termination notice from either Party, this Agreement shall be extended for
one
(1) year on the fourth (4th)
anniversary of the Effective Date and every anniversary date thereafter such
that the term of the Agreement will always have at least one (1) full year
to
run.
| 3.2 |
Termination
for Default
|
Subject
to Section 1.2, this Agreement may be terminated (i) by either Party for
the
other Party’s default in materially complying with the provisions of this
Agreement, and (ii) by ENEC for Thorium Power’s default in materially complying
with the provisions of the Nuclear Regulatory Consulting and Strategic Advisory
Agreement between Thorium Power and the Federal Authority for Nuclear Regulation
(“FANR”) of even date hereto, by giving written notice of the default to the
other Party and by allowing the other Party thirty (30) calendar days to
cure
any such default, if curable. If the default has not been cured within the
period allowed for curing the default, this Agreement may be terminated with
thirty (30) calendar days written notice. Upon termination of this Agreement
for
cause by either Party, ENEC shall only be required to pay Thorium Power for
Services performed and expenses incurred before the effective date of such
termination.
9
| 3.3 |
Termination
for Convenience
|
Subject
to Article 14, this Agreement may be terminated by ENEC for its convenience
by
giving ninety (90) calendar days’ prior written notice to Thorium Power. During
that period Thorium Power shall work with ENEC to make an orderly exit.
Notwithstanding any limitation on consequential damages in Section
7.1
(Disclaimer
of Consequential Damages),
upon
such termination, ENEC shall compensate Thorium Power for (i) all Services
performed and expenses before the effective date of such termination and
(ii) an
additional wind-down fee which shall be the sum of the compensation for a
period
of four (4) weeks for all Thorium Power full time equivalent resources working
under this Agreement on the date of termination, as compensation for Thorium
Power’s expenses in connection with the termination of infrastructure contracts
and other contracts benefiting the Services which may not be immediately
cancellable. Such compensation shall be an exclusive remedy and shall be
in full
and final settlement of all claims arising from such termination and shall
exclude all other liability of whatever nature arising in connection with
the
termination.
| 4 |
Confidentiality
|
| 4.1 |
Definition
of Confidential
Information
|
The
term
“Confidential Information” shall mean this Agreement and all trade secrets,
data, know-how, data or other information and materials, business strategies,
plans and procedures, business information, proprietary information, of a
Party,
the UAE, any Emirate of the UAE or any sub-division or governmental entity
(including any regulator even where independent) of any of the foregoing,
as
well as any other information and materials that are deemed confidential
or
proprietary to or by a Party and are appropriately identified and designated
as
such by that Party. All information and documents of any nature provided
to
Thorium Power (whether before or after the Effective Date) by or on behalf
of
the EAA, ENEC, FANR,
any
other governmental entity, agency, regulator or corporation of the UAE or
Abu
Dhabi or any person owned or controlled by any of the foregoing]
(including all information, documents and advice provided to any of those
entities by any legal adviser to any of those entities which is also received
by
Thorium Power)
is
hereby designated as Confidential Information by ENEC.
| 4.2 |
Obligation
of Confidentiality and
Non-Use
|
Thorium
Power acknowledges and agrees that it owes a duty to ENEC maintain in strict
confidence all Confidential Information (as defined above) it has received
or
learned, or, which it has developed for ENEC, during the term of this Agreement.
Thorium Power shall take all steps reasonably necessary to prevent the
unauthorized disclosure or dissemination of such Confidential Information
for
any reason and to any person or entity, except with the prior written consent
of
ENEC. In addition, Thorium Power shall not use or copy any such Confidential
Information, or authorize or permit others to use any such Confidential
Information, for any purposes other than in connection with performance of
the
Services. Notwithstanding the foregoing, Thorium Power may disclose such
Confidential Information to those of its officers, employees, and consultants
of
Thorium Power (each, a “Representative,”
and
collectively, “Representatives”)
who
have a need to know such information in connection with performance of the
Services under this Agreement; provided that each Representative, prior to
such
disclosure, is informed by Thorium Power of the confidential nature of such
information and of the confidentiality obligations imposed on Thorium Power
under this Agreement. Thorium Power shall be responsible for any and all
breaches of the provisions of this Article
4
(Confidentiality)
by its
Representatives. As used herein, “steps reasonably necessary” means the steps
that a Party takes to protect its own, similarly confidential or proprietary
information, which steps shall not be less than a reasonable standard of
care.
10
| 4.3 |
Obligation
to Inform
|
Upon
learning of any actual or threatened unauthorized disclosure or use of
Confidential Information, Thorium Power shall provide ENEC with notice thereof
and cooperate with ENEC in efforts to prevent or remediate such disclosure.
| 4.4 |
Exceptions
to Confidential Information
|
Notwithstanding
the foregoing paragraph, “Confidential Information” shall not include any
information that: (i) at the time of disclosure is in the public domain,
or
after disclosure becomes, through no fault of the receiving Party, part of
the
public domain as evidenced by generally available documents or publications;
(ii) was or is supplied to the receiving Party by a third party as a matter
of
right and which is not subject to any restriction as to confidential treatment
on the part of said third party; (iii) was available to the receiving Party
on a
non-confidential basis prior to its disclosure to the receiving Party by
the
disclosing Party; or (iv) was or is independently developed by the receiving
Party or its Representatives without use of Confidential
Information.
| 4.5 |
Requests
for Disclosure
|
Thorium
Power shall immediately notify ENEC of any request by any third person, court,
governmental or administrative body that Confidential Information be disclosed.
The Parties shall cooperate in all efforts to protect the Confidential
Information from disclosure and lessen the effects of such disclosure,
consistent with applicable laws.
| 4.6 |
Return
or Destruction of Confidential Information
|
Upon
the
termination or expiration of this Agreement, or at any other time upon the
written request of ENEC, Thorium Power shall promptly return to ENEC
(or
if
ENEC so requests destroy) all
Confidential Information (or,
where the request is limited to specific information, such of it as may be
specified in the request) in
Thorium Power's or its staff's possession or control, together with all copies,
summaries and analyses thereof, regardless of the format in which such
information exists or is stored and
shall
procure the return or destruction of such information from any person to
whom it
has disclosed that confidential information.
Within
five (5) business days following the expiration or earlier termination of
this
Agreement, or any written request as set forth above, Thorium Power shall
provide the other with a written certification of its compliance with the
provisions of this Section
4.6
(Return
or Destruction of Confidential Information).
11
| 4.7 |
No
waiver
|
Thorium
Power acknowledges that information and documents provided to it by any entity
which contains advice from legal advisers to the EAA, ENEC, FANR, any other
governmental entity, agency, regulator or corporation of the UAE or Abu Dhabi
or
any person owned or controlled by any of the foregoing is subject to legal
professional privilege and the benefit of that privileged advice belongs
to the
relevant entity and no disclosure to Thorium Power or by Thorium Power shall
be
considered to be a waiver by the EAA, ENEC, FANR, any other governmental
entity,
agency, regulator or corporation of the UAE or Abu Dhabi or any person owned
or
controlled by any of the foregoing of such legal professional privilege or
any
other right of privilege which it may have or be able to assert in respect
of
that information.
| 5 |
Intellectual
Property
|
| 5.1 |
Ownership
of Intellectual Property
|
All
inventions, original works of authorship, findings, conclusions, data,
discoveries, developments, concepts, improvements, trade secrets, techniques,
processes, methodologies and know-how, whether or not patentable or registerable
under copyright or similar laws, which the Parties may solely or jointly
conceive or develop or reduce to practice, or cause to be conceived or developed
or reduced to practice, in the performance of the Services under this Agreement
(collectively, the “Inventions”) as well as any and all intellectual property
rights inherent in the Inventions and appurtenant thereto including, without
limitation, all patent rights, copyrights, trademarks, know-how and trade
secrets (collectively, “Intellectual Property Rights”), shall become the sole
property of ENEC.
| 5.2 |
Further
Assurances
|
Upon
the
request and at the expense of the other Party, any and all instruments and
documents shall be executed and delivered and any other acts shall be taken
as
may be necessary or desirable to ensure that the Inventions and the Intellectual
Property Rights are the sole property of ENEC or to enable ENEC to secure
its
rights in the Inventions and the Intellectual Property Rights in any and
all
jurisdictions.
12
| 6 |
Limited
Warranty and Disclaimer
|
THORIUM
POWER WARRANTS TO ENEC THAT (A) THE SERVICES WILL BE PERFORMED BY SUITABLY
QUALIFIED AND EXPERIENCED PERSONNEL AS SPECIFIED IN THIS AGREEMENT TO RECOGNIZED
NUCLEAR INDUSTRY STANDARDS AND WITH ALL REASONABLE SKILL AND CARE; (B) IN
CONDUCTING THE SERVICES AND CREATING THE DELIVERABLES THORIUM POWER WILL
NOT
INFRINGE THE COPYRIGHT OR OTHER INTELLECTUAL PROPERTY RIGHTS OR MISAPPROPRIATE
OR MISUSE THE CONFIDENTIAL INFORMATION OF ANY THIRD PARTY. THORIUM POWER
WARRANTS TO USE ITS BEST EFFORTS TO ENSURE THAT ANY RESULTS, DELIVERABLES
OR
TECHNICAL DATA PROVIDED WILL BE ERROR FREE, CONFORM TO ANY RELIABILITY OR
PERFORMANCE STANDARDS AND WILL MEET ENEC’S NEEDS AND OBJECTIVES. THESE
WARRANTIES ARE THE ONLY WARRANTIES GIVEN BY THORIUM POWER. THORIUM POWER
HEREBY
EXPRESSLY EXCLUDES AND DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED
OR STATUTORY, REGARDING THE SERVICES OR THE DELIVERABLES, INCLUDING, WITHOUT
LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR
PURPOSE, AND ANY WARRANTY OR GUARANTY OF ABSENCE OF HIDDEN DEFECTS, ANY OTHER
WARRANTY OF NON-INFRINGEMENT, AND ANY WARRANTY THAT MAY ARISE BY REASON OF
USAGE
OF TRADE, CUSTOM OR COURSE OF DEALING.
The
compensation for any rework shall be as stated in ATTACHMENT
D–
COMPENSATION.
| 7 |
Disclaimers
and Limitations of Liability
|
| 7.1 |
Disclaimer
of Consequential Damages
|
Neither
Party shall be liable to the other Party hereto for any consequential,
incidental, indirect, special, punitive or exemplary damages suffered or
incurred by such other Party in connection with a breach or alleged breach
of
this Agreement, even if such other Party has been advised of the possibility
of
such damages. Consequential damages shall include, without limitation,
opportunity costs, loss of use of facilities or other assets, claims of
subcontractors, lost profits, lost savings, lost business or lost goodwill.
| 7.2 |
Liability
Cap
|
In
no
event shall either Party’s aggregate cumulative liability to the other Party
arising out of or relating to this Agreement, the Services of the Deliverable
exceed 2.5 times the cumulative Professional Fees payable to and Expenses
incurred by Thorium Power for the Services, as specified in ATTACHMENT
D–
COMPENSATION.
| 7.3 |
Applicability
|
The
provisions of this Article
7
(Disclaimers
and Limitations of Liability)
shall
apply to the full extent permitted by law whether such a claim is based on
tort
(regardless of the degree of fault or negligence), warranty, breach of contract,
strict liability or otherwise, and shall survive the cancellation, expiration
or
termination of this Agreement, as well as the fulfilment of the obligations
of
the parties hereunder and shall apply notwithstanding any other provisions
of
this Agreement.
| 7.4 |
Acknowledgement
|
The
Parties, having been advised by legal counsel on all matters relating to
this
Agreement, acknowledge and agree that they are sophisticated parties in all
matters relating to this Agreement and that the foregoing disclaimer and
limitation of liability represent bargained-for allocations of risk, and
that
the economics, terms and conditions of this Agreement reflect such
allocations.
13
| 8 |
Indemnification
|
ENEC
agrees to indemnify, defend, and hold harmless Thorium Power and its officers,
directors, employees and agents (hereinafter collectively “Indemnitees”) against
and from any and all claims, demands, suits, costs and damages of every kind
and
description including reasonable attorneys' fees and/or litigation expenses
in
any jurisdiction, brought or made against any of the Indemnitees by third
parties resulting from Thorium Power’s proper performance of this Agreement or
Thorium Power entering into this Agreement, ENEC or UAE’s future nuclear energy
program provided that this indemnity:
|
(a)
|
shall
not apply to any claims, demands, suits, costs or damages which
arise
directly or indirectly out of the gross negligence of any Indemnitee,
the
wilful default of any Indemnitee or the breach of this Agreement
by
Thorium Power;
|
|
(b)
|
shall
not apply to any claims, demands, suits, costs or damages which
arise
directly or indirectly out of any Nuclear Damage caused by a nuclear
reactor outside of the UAE;
|
|
(c)
|
shall
not apply to any claims, demands, suits, costs or damages to the
extent
that Thorium Power is insured to cover the costs to it of such
claims,
demands, suits, costs or damages, even in circumstances when the
relevant
insurance policy is taken out by ENEC or a third party without
the
knowledge of Thorium Power; and
|
|
(d)
|
notwithstanding
Section 24.3, shall cease to apply upon any termination of this
Agreement
arising as a result of a breach of this Agreement by Thorium Power.
|
| 9 |
Independent
Contractor Status
|
This
Agreement does not create a joint venture, partnership or any other type
of
legal entity among the Parties and in no event shall the Parties represent
to
other persons that a joint venture, partnership, or other type of business
entity has been formed. In making and performing this Agreement, the Parties
hereto are acting and shall act as independent contractors. Neither Party
is,
nor shall be deemed to be, an agent, legal representative, joint venturer
or
partner of the other Party for any purpose. Neither Party has the authority
under this Agreement to represent itself as having authority to obligate
the
other Party to act or refrain from acting and accordingly undetakes not to
represent that it has such authority.
14
| 10 |
Compliance
with Laws
|
Thorium
Power shall comply, and shall be responsible for ensuring that their
Representatives (as defined in Section
4.1
(Definition
of Confidential Information)
comply,
with all applicable laws including the laws of Abu Dhabi and the UAE pursuant
to
this Agreement. Without limiting the generality of the foregoing, Thorium
Power
shall not take any action, and it will ensure that its Representatives take
no
action, that would violate any anti-bribery and related prohibitions implemented
under the Organization for Economic Cooperation and Development Convention
on
Combating Bribery of Foreign Public Officials in International Business
Transactions, the Organization of American States Inter-American Convention
Against Corruption, Council of Europe Criminal Law Convention on Corruption,
the
United Nations Convention Against Corruption, the African Union Convention
on
Preventing and Combating Corruption, the United States Foreign Corrupt Practices
Act of 1977, as amended, or any other similar United States or foreign law,
statute, rule or regulation, or any other similar laws of any country that
would
create any liability for Thorium Power or ENEC under any such law. The Parties
further understand that materials and information resulting from the performance
of this Agreement may be subject to United States and UAE export control
laws
and regulations and that Thorium Power is responsible for its compliance
with
such laws in its activities.
| 11 |
Notices
|
Any
notices required or permitted to be sent hereunder shall be delivered personally
or mailed, certified mail, return receipt requested, or delivered by courier
service to the following addresses, or such other address as any Party hereto
designates by written notice to the other Party. Provided, however, a
transmission per telefax or email shall be sufficient and shall be deemed
to be
properly served when the telefax or email is received if the signed original
notice is received by the recipient within seven (7) calendar days
thereafter.
IF
TO
THORIUM POWER:
0000
Xxxxxxxxxx Xxxxx, Xxxxx 000
XxXxxx,
XX 00000 XXX
United
States of America
Attention:
Xxxx Xxxxxxxxx
Chief
Operating Officer
Tel:
x0.000.000.0000
Fax
x0.000.000.0000
Email:
xxxxxxxxxx@xxxxxxxxxxxx.xxx
IF
TO
ENEC:
[Address]
Attention:
[name, title]
Telephone:
Fax:
E-Mail:
15
| 12 |
Choice
of Law and Dispute Resolution
|
12.1 Governing
Law.
This
Agreement shall be governed by, and construed in accordance with the laws
of
England and Wales.
12.2 Mediation
of Disputes.
With
respect to any disputes and controversies of any kind or nature arising under
or
in connection with this Agreement, the Parties agree to submit such dispute
or
controversy to mediation for a sixty (60) calendar day period (such period
commencing on the date the mediator is appointed), and agree to make good
faith
efforts to resolve such dispute or controversy in meditation. If the dispute
or
controversy is not resolved in the above-described sixty (60) calendar day
period, neither Party shall be obligated to continue in mediation. Such
mediation shall be held with an experienced mediator, who shall be selected
by
agreement of the Parties. In the event the Parties are unable to agree upon
the
mediator, within thirty (30) calendar days of a written request by either
Party
to do so, then at the request of either Party, the London Court of International
Arbitration shall appoint the mediator. In the event that the Parties are
unable
to resolve any dispute or controversy in mediation, then upon the expiration
of
the sixty (60) calendar day period, from the date of agreement or appointment
of
the mediator (as appropriate) either Party may submit any such dispute or
controversy to arbitration in accordance with the provisions of this
Article
12 (Choice of Law and Dispute Resolution).
12.3 Resolution
of Disputes.
Any
dispute arising out of or in connection with this Agreement including any
question regarding its existence, validity or termination, shall be referred
to
and finally resolved by arbitration under the London Court of International
Arbitration (LCIA) Rules, which are deemed to be incorporated by reference
into
this Article
12 (Choice of Law and Dispute Resolution).
The
number of arbitrators shall be three (3).The claimant shall nominate one
arbitrator. The respondent shall nominate one arbitrator. The third arbitrator
who shall be the chairman of the tribunal shall be selected by the LCIA Court.
The seat, or legal place, of arbitration shall be London, United Kingdom.
The
language to be used in the arbitral proceedings shall be English. The
arbitrators shall not alter, amend or modify the terms and conditions of
this
Agreement but shall consider the pertinent facts and circumstances and be
guided
by the terms and conditions of this Agreement and applicable law which shall
be
binding upon them in resolving any dispute or controversy hereunder. In no
event
may the arbitrators award punitive or consequential damages. If a solution
is
not found in the terms of this Agreement, the arbitrators shall be guided
by the
substantive law of England and Wales, excluding all conflicts of law rules.
The
decision by the arbitrators shall be final and binding upon the Parties,
their
successors, and assigns and the Parties shall comply with such decision in
good
faith. Each Party hereby submits itself to the jurisdiction of the courts
of the
place where the arbitration is held, but only for the entry of judgment with
respect to the decision of the arbitrator hereunder. Notwithstanding the
foregoing, judgment upon the award may be entered in any court where the
arbitration takes place, or any court of competent jurisdiction.
16
12.4 Decision.
The
arbitrators’ award shall include a reasoned basis for the award. The arbitrators
will not have power to award damages in connection with any dispute in excess
of
actual compensatory damages and will not multiply actual damages or award
consequential or punitive damages or award any other damages that are excluded
under the provisions of Article
7 (Disclaimers and Limitations of Liability).
12.5 Discovery.
In
addition to discovery that may be permitted under the LCIA Rules of Arbitration,
the Parties shall be permitted limited discovery of facts, documents, testimony
and other evidence. Once the parties have provided notice to one another
of the
claims, matters and issues in dispute, the parties may take discovery in
the
following manner:
(1) The
Parties may request discovery as provided in the International Bar Association
Rules for the Taking of Evidence in International Arbitration. Discovery
requests may be made after the three-arbitrator panel has been
appointed.
(2) The
arbitration panel shall resolve any disputes relating to discovery.
12.6 Submission
to Jurisdiction.
For
purposes of (i) compelling arbitration under this Agreement or (ii) entering
judgment on any arbitration award under this Agreement or for any other
proceeding relating to the arbitration, each of the Parties hereby: (A)
irrevocably submits to the non-exclusive jurisdiction of the English Courts
and
(B) irrevocably waives, to the fullest extent permitted by applicable law,
any
objection it may now or hereafter have to such jurisdiction.
12.7 Fees;
Expenses.
The
Parties shall equally advance the fees and expenses of the LCIA and the
arbitrators. The arbitrators in their award shall apportion such fees and
expense between the Parties in such amounts as the arbitrators determine
is
appropriate.
12.8
Amendment
to LCIA Rules
The
LCIA
Rules
shall be
amended as follows:
(1) the
Request for Arbitration under Article 1 of the Rules shall also contain the
Statement of Case provided for by Article 15.2 of the Rules; the Request
shall
be accompanied by the documents required by Article 15.6 of the
Rules;
(2) the
tribunal shall conduct proceedings on the basis of documents and other materials
only, unless the Tribunal, in its absolute discretion, decides that it is
necessary to hold an oral hearing, and Article 19(1) of the Rules shall be
amended accordingly;
17
(3) if
at any
point in the proceedings any party fails for any reason to avail itself of
the
opportunity to present its case in accordance with the Rules (as amended
by this
clause) or as directed by the tribunal, the tribunal shall proceed with the
arbitration and make an award.
12.9 Agents
for Service of Process
Without
prejudice to any other method of service allowed by law, Thorium Power appoints
Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, Tower 42, Level 23, 00 Xxx Xxxxx Xxxxxx
Xxxxxx, XX0X 0XX, Xxxxxx Xxxxxxx and ENEC appoints [ ] as their respective
agents for service or process in any proceedings before the English Courts.
If
any person appointed as process agents is unable for any reason to act, the
party which appointed the process agent, must immediately appoint another
agent
and failing such appointment within fourteen (14) days of the event taking
place, the other party may appoint the agent. Failure by a process agent
to
notify a party of any process will not invalidate the relevant
proceedings.
| 13 |
Nature
of Agreement
|
Cognizant
of the fact that this Agreement is subject to civil and commercial law with
respect to its obligations hereunder, and the execution, delivery and
performance of this Agreement constitute private and commercial acts rather
than
public or governmental acts. The Parties hereby explicitly accept the
jurisdiction of the LCIA to resolve any dispute.
| 14 |
Force
Majeure
|
Neither
Party shall be liable to the other for delays or failures in performing its
obligations under this Agreement due directly or indirectly to any act (“Force
Majeure”), comprising (i) acts of God; (ii) acts, including failures to act
or delays in acting, of any governmental authority (de
jure
or
de
facto),
(iii) accidents or disruptions such as wars (declared or undeclared),
riots, revolutions, acts of terrorism, world disturbances, fires, floods,
earthquakes, storms, sabotage, nuclear incidents, epidemics; (iv) strikes,
labor disputes, labor difficulties or (v) any event not related to the
performance of the Services which is beyond its reasonable control. The
foregoing shall apply even though any of such causes exists at the time of
this
Agreement or occurs after a Party’s performance is delayed or otherwise hindered
for other causes. In the event of any delay or failure excused by this
Article
14 (Force Majeure),
the
Party whose performance is delayed shall as soon as practical (1) notify
the
other Party, (2) continue to perform the Services to the extent it is able
to do
so; (3) take all reasonable steps to minimize the impact of the event of
force
majeure on the ENEC including the impact of any delay and rectify any failure
to
perform and (4) specify the revised performance date. In the event of such
delay, the time of performance shall be extended for a period equal to the
time
lost by reason of the delay. If the delay exists for more than ninety (90)
calendar days and Thorium Power is the affected party, ENEC shall be entitled
to
terminate this Agreement for convenience in accordance with Section
3.3 (Termination for Convenience)
provided that, for these purposes, the reference to "ninety (90) calendar
days'"
in Section 3.3 shall be consider to be a reference to "one (1)
days'".
18
|
15
|
Insurance
|
Thorium
Power shall, in respect of its liabilities under this Agreement, take out
and
maintain on and from the Effective Date until the date which is 12 months
after
the expiry or termination of this Agreement professional indemnity insurance
with first class insurers of sound repute and financial standing, on an each
and
every claim basis, for an amount equal to US$5,000,000 per claim. Thorium
Power
shall ensure that ENEC is named as a co-insured on each policy of professional
indemnity insurance referred to above and shall ensure that each such policy
contains endorsements which ensure that: (a) ENEC's interest in any such
policy
shall not be terminated, vitiated, abrogated or otherwise adversely affected
as
a result of any action or inaction (including any non-disclosure) by any
other
insured; (b) ENEC is the loss payee in respect of any claims made by ENEC
on
such policies; and (c) there is a waiver of subrogation provision benefiting
ENEC. Thorium Power will on each renewal or replacement of any policy referred
to above provide evidence (in form and substance reasonably satisfactory
to
ENEC) of its compliance with this Article 15.
| 16 |
Licenses
and Taxes
|
As
part
of the Services, Thorium Power shall (a) pay
all
taxes, duties and fees, and obtain all permits, licences and approvals
associated with the Services. Any payment of taxes on income levied by the
US or
its political subdivisions or any other country shall not be part of the
Services and ENEC shall not compensate Thorium Power for such costs. ENEC,
as
requested by Thorium Power, shall provide assistance and services as are
described in ATTACHMENT
B-- THORIUM POWER RESOURCES
with
respect to such licenses and authorizations. The Parties shall assist each
other
in every manner reasonably possible in securing such authorizations and tax
exemptions as may be required.
| 17 |
Quality
Assurance Procedures
|
Thorium
Power shall establish and implement written procedures (“Quality Assurance
Procedures”) covering the delivery of the Services that meets IAEA standards and
is suitable for the work with ENEC. The Quality Assurance Procedures shall
be
made available for review and approval by ENEC. Thorium Power shall amend
the
Quality Assurance Procedures in order to obtain ENEC's approval. Review and
approval by ENEC of Thorium Power’s Quality Assurance Procedures shall not
relieve Thorium Power of its responsibility to perform all Services in
accordance with the Quality Assurance Procedures and the other provisions
of
this Agreement.
19
|
17.1
|
Subcontractor
Quality Assurance
Procedures
|
In
accordance with Thorium Power’s Quality Assurance Procedures, Thorium Power
shall require its Subcontractors to establish, implement and maintain
appropriate quality assurance procedures which shall meet the requirements
of
Thorium Power’s Quality Assurance Procedures.
| 17.2 |
Non-conformances
|
Thorium
Power shall provide ENEC with an opportunity to audit any reports of a
non-conformance under the Quality Assurance Procedures or any Subcontractor’s
quality assurance procedures, or any non-conformance of a Service.
| 17.3 |
Adequacy
of Methods and Equipment
|
If
at any
time ENEC determines that Thorium Power's or a subcontractor’s methods,
performance or any other aspect or element of the Services are inadequate
for
ensuring the requisite quality, ENEC may order Thorium Power to improve its
performance and/or change its procedures or staff, and Thorium Power shall
take
all actions necessary so as to ensure the quality of the Services and compliance
with the requirements of this Agreement.
| 18 |
Labor
and Immigration Laws
|
Thorium
Power shall comply with the applicable labor and immigration laws that may
impact the Services under this Agreement. Thorium Power shall perform employment
eligibility and verification checks and maintain employment records, as required
by applicable laws.
| 19 |
Training
of Employees
|
Thorium
Power and Subcontractor personnel shall be trained on environmental and
occupational safety and health, as well as nuclear safety requirements before
they are assigned to the Thorium Power team for duties that require knowledge
regarding such matters.
No
person
that is employed or engaged by Thorium Power or its Subcontractors shall
be
physically and/or mentally unfit for the performance of the Services.
20
| 20 |
Safety
Culture
|
The
International Atomic Energy Agency’s (IAEA) International Nuclear Safety
Advisory Group’s (INSAG) INSAG-4 publication, defines safety culture as “that
assembly of characteristics and attitudes in organizations and individuals
which
establishes that, as an overriding priority, nuclear plant safety issues
receive
the attention warranted by their significance. Thorium Power shall conform
to
all IAEA standards in establishing a safety culture. As part of that culture,
Thorium Power shall comply with all applicable Abu Dhabi and UAE laws and
regulations which prohibit Discrimination against workers for engaging in
certain Protected Activities. “Discrimination” includes discharge or any other
adverse actions that relate to compensation, terms, conditions, and privileges
of employment. The term “Protected Activities” includes, among other things,
workers raising nuclear safety or quality control complaints either internally
to their employer or to a regulatory agency. Thorium Power shall fully
investigate, and ensure that its Subcontractors investigate, any allegation
of
Discrimination for engaging in Protected Activities with respect to Work
under
this Agreement.
Within
two (2) business days after the receipt by Thorium Power or any of its
Subcontractors of (i) an allegation associated with Services under this
Agreement by a worker or former worker of Thorium Power or any of its
Subcontractors of Discrimination because of engagement in Protected Activities
or (ii) notice of the filing of a complaint to any competent authority by
any
such worker or former worker, Thorium Power shall cooperate fully with any
investigation of any such allegations.
Thorium
Power shall ensure that no agreement affecting the compensation, terms,
conditions and privileges of employment, including, but not limited to, any
agreement to settle a complaint filed by a worker or former worker of Thorium
Power or a Subcontractor under applicable law shall contain any provision
which
prohibit, restrict, or otherwise discourages a worker or former worker from
participating in any Protected Activity, including, but not limited to,
providing information to ENEC or any other competent regulatory
authority.
Thorium
Power shall ensure that its employees understand that they can raise safety
related concerns and directly contact the competent regulatory agencies without
fear of employer reprisals or job related discrimination.
| 21 |
Code
of Ethics
|
Thorium
Power shall maintain and comply with a “Code of Ethics.” Subcontractors shall
comply with a code of ethics that is consistent with Thorium Power’s Code of
Ethics. ENEC shall have the right to review Thorium Power’s Code of Ethics and
be informed of any change in the code be such change comes into
force.
21
| 22 |
Safeguards
Information
|
Thorium
Power and its Subcontractors may have access to “Safeguards Information”
provided by the International Atomic Energy Agency (IAEA), the UAE, foreign
governments, or industry participants during performance of the Services.
Safeguards Information is information not otherwise classified or restricted
that identifies (1) security measures for the physical protection of special
nuclear material or (2) security measures for the physical protection and
location of certain plant equipment vital to the safety of nuclear production
or
utilization facilities. Without prejudice and in addition to Article 4, Thorium
Power agrees that Safeguards Information shall be handled and protected from
unauthorized disclosure in accordance with the requirements of the applicable
Abu Dhabi and UAE authorities.
| 23 |
Nuclear
Liability Protection
|
Thorium
Power shall not be the owner or operator of any nuclear facility in the UAE.
The
Services provided by Thorium Power shall be advisory. Thorium Power shall
not be
required to supply any services that could result in a claim for nuclear
damages
against either Party and that the public is properly protected, the Parties
shall take the following actions.
| 24 |
Miscellaneous
|
| 24.1 |
Assignment
|
The
Parties recognize that, for the reasons stated in the Recitals above, this
Agreement is personal as to the Parties. Therefore, a Party may not assign
or
transfer this Agreement or any of its rights or obligations created hereunder,
by operation of law or otherwise, without the prior written consent of the
other
Party. Provided however, ENEC may transfer all or any rights and/or obligations
in this agreement to any governmental entity (including without limitation
any
regulator whether or not indepemdent) of the UAE or any Emirate of the UAE
or
any entity which is owned or controlled by one or more such governmental
entities and Thorium Power with the prior written consent of ENEC (such consent
not to be unreasonably withheld or delayed) may assign its rights in this
Agreement to a person who is and at all times remains a Controlled Affiliate.
A
Controlled Affiliate is an entity that is controlled by, that controls or
is
under common control with, Thorium Power; and, for this purpose, “control” with
respect to any entity shall mean the ability to effectively control, directly,
the operations and business decisions of such Person by the voting of shares
or
other securities
22
|
24.2
|
No
Third Party Beneficiaries
|
This
Agreement is solely for the benefit of, and shall inure to the benefit of,
the
Parties and their respective successors and permitted assigns, and this
Agreement shall not otherwise be deemed to confer upon or give to any third
party any right, claim, cause of action or other interest herein.
| 24.3 |
Survival
|
The
provisions of Article 4 (Confidentiality), Article 5 (Intellectual
Property), Article 6 (Limited Warranty and Disclaimer), Article 7
(Disclaimers and Limitations of Liability), Article 8 (Indemnification),
Article 10 (Compliance with Laws), Article 12 (Choice of Law and
Dispute Resolution), Article 15 (Insurance) and Article 23
(Nuclear Liability Protection shall remain in full force and effect
notwithstanding the termination or expiry of this Agreement.
| 24.4 |
Headings
|
The
headings used in this Agreement are included for convenience only and are
not to
be used in construing or interpreting this Agreement.
| 24.5 |
Amendments
or Modifications
|
This
Agreement may not be released, discharged, amended or modified in any manner
except by an instrument in writing signed by the Party or Parties to be
bound.
| 24.6 |
Reproduction
of Documents
|
This
Agreement and all documents relating hereto, including, but not limited to,
(i)
consents, waivers, amendments and modifications which may hereafter be executed
and (ii) certificates and other information previously or hereafter furnished,
may be reproduced by any photographic, photostatic, microfilm, optical disk,
micro-card, miniature photographic or other similar process. The Parties
agree
that any such reproduction shall be admissible in evidence as the original
itself in any judicial or administrative proceeding, whether or not the original
is in existence and whether or not such reproduction was made by a Party
in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in
evidence.
| 24.7 |
Severability
|
Any
provisions of this Agreement which are determined to be invalid or unenforceable
in any jurisdiction shall be ineffective to the extent of such invalidity
or
unenforceability in such jurisdiction, without rendering invalid or
unenforceable the remaining provisions of this Agreement or affecting the
validity or enforceability of such provisions in any other jurisdiction.
If an
arbitral panel or a court of competent jurisdiction declares any provision
of
this Agreement to be invalid or unenforceable, the Parties shall request
that
such arbitral panel or court reduce the scope, duration, or area of the
provision, delete specific words or phrases from the provision, or replace
the
provision with a provision that is valid and enforceable and that comes closest
to expressing the original intention of the Parties, and this Agreement shall
be
enforceable as so modified in the jurisdiction in which the provision was
declared invalid or unenforceable.
23
|
24.8
|
Contract
Construction
|
For
purposes of contract construction, or otherwise, this Agreement is the product
of negotiation and neither Party to it shall be deemed to be the drafter
of this
Agreement or any part thereof.
| 24.9 |
Entire
Agreement
|
Except
as
otherwise expressly set forth in this Agreement, those documents expressly
referred to herein and other documents of even date herewith embody the complete
agreement and understanding among the Parties, written or oral, which may
have
related to the subject matter hereof in any way.
| 24.10 |
Counterparts
|
This
Agreement may be executed in any number of counterparts, each of which shall
be
an original as against any Party whose signature appears thereon, but all
of
which together constitute but one and the same instrument.
[Signature
page follows]
24
IN
WITNESS WHEREOF, the Parties have caused this Agreement to be executed and
delivered as of the Effective Date by their duly authorized
representatives:
|
EMIRATES
NUCLEAR ENERGY CORPORATION
|
||||
|
By:
|
/s/ Seth Grae |
By:
|
/s/ Xxxxxxxx Xx Xxxxxxx | |
|
Name:
|
Seth Grae |
Name:
|
Xxxxxxxx Xx Xxxxxxx | |
|
Title:
|
President and CEO |
Title:
|
Chairman, Executive Affairs Authority | |
25
ATTACHMENT
A -
STATEMENT OF WORK
From
23
June through 31 December 2008, Thorium Power will provide the following
Services:
| 1. |
Design
and Launch of ENEC Organization:
|
|
·
|
Provide
direction on ENEC organizational structure, position definitions
and
operating procedures, utilizing international industry best
practices.
|
|
·
|
Act
as surrogate for key nuclear-related management positions (pending
permanent hires) to quickly establish operational policies and
initiate
productive work.
|
|
·
|
Act
as mentor: transfer industry knowledge from the Thorium Power team
to
personnel in the permanent ENEC organization and provide operational
support to assure successful
transition.
|
|
·
|
Support
recruiting strategy and execution for nuclear-specific permanent
positions
in ENEC and help establish network of nuclear recruiting sources
for the
new HR functions.
|
| 2. |
Development
and Execution of ENEC’s Nuclear Program Plans:
|
|
·
|
Provide
strategic advice to ENEC organization and department heads on nuclear
matters.
|
|
·
|
Provide
project management expertise to enable meeting key UAE nuclear
program
objectives.
|
|
·
|
Execute,
under direction of incoming ENEC department heads, nuclear-related
projects across the new
organizations.
|
Thorium
Power will propose and the Parties will agree on more detailed work plans
for Q3
and Q4 of 2008 outlining specific ENEC objectives and Thorium Power’s
corresponding role and deliverables.
In
providing Services herein, Thorium Power shall operate at all times under
the
direction of ENEC; however, Thorium Power will also comply with reasonable
requests of other competent governmental organizations that are (i) consistent
with this Agreement and (ii) in accordance with directions or instructions
received from ENEC.
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ATTACHMENT
B -
THORIUM POWER RESOURCES
For
the
period from 23 June through 31 December 2008, Thorium Power will provide
a
project team organized into three functional teams, corresponding to the
main
work-streams to build the new ENEC organization and execute key program
activities:
|
1.
|
Nuclear
Program Development and Management
|
|
·
|
Supporting
ENEC senior management and support
departments.
|
|
2.
|
Contracting
& Project Execution
|
|
·
|
Supporting
ENEC Project Execution department, including procurement and contracting
activities for key vendors to the UAE nuclear energy
program.
|
|
3.
|
Nuclear
Expertise & Infrastructure
Development
|
|
·
|
Supporting
nuclear industry expertise departments including e.g., site selection
and
fuel cycle development.
|
The
Thorium Power team will be managed as follows:
|
·
|
Thorium
Power will form and manage the functional teams consisting of qualified
and experienced personnel with appropriate expertise including
nuclear
reactor deployment, project management, contracting & procurement,
nuclear international relations, nuclear technology and nuclear
industry
recruiting.
|
|
·
|
Each
functional team will have a project leader who will interface with
the
corresponding ENEC department heads. Thorium Power will designate
such
project leaders in consultation with ENEC. The leader of the functional
team Nuclear Program Development and Management will act as head
of the
Thorium Power team and will interface with the ENEC General
Manager.
|
Thorium
Power shall provide ENEC with descriptions of the team members, their background
and their roles, and shall keep ENEC reasonably informed of changes.
While
taking into account the need to keep ENEC adequately informed of its activities,
Thorium Power shall determine the composition of its project team, which
may
vary over time. Except as otherwise provided in this Agreement, Thorium Power
shall furnish all supervision, labor, equipment, and materials, and shall
obtain
all licenses and permits required for the performance of the Services. Thorium
Power shall also be solely responsible for the selection of the means, methods,
and procedures of performing the Services.
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ATTACHMENT
C –
ENEC SUPPORT
For
the
period from 23 June through 31 December 2008, until permanent staff has been
hired into the various ENEC departments, ENEC will provide:
|
·
|
Temporary
interfaces for Thorium Power’s project leaders in order to adequately
review and approve work product, and make decisions related to
the
Services, as outlined in ATTACHMENT
A-- STATEMENT OF WORK
|
|
·
|
Working
resources available to be embedded into Thorium Power’s functional
teams
|
|
·
|
Facilitate
Thorium Power’s interactions with UAE government
authorities
|
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ATTACHMENT
D –
COMPENSATION
|
1.
|
Professional
Fees
|
For
the
period from 23 June through 31 December 2008, ENEC shall pay Thorium Power
an
amount of Professional Fees (“2008 Q3/Q4 ENEC Project Professional Fees”) for
the Services outlined in ATTACHMENT
A-- STATEMENT OF WORK
equal to
USD 8,868,000 (eight million eight hundred sixty eight thousand U.S. dollars).
ENEC shall make a pre-payment to Thorium Power equal to the 2008 Q3/Q4 ENEC
Project Professional Fees within 10 (ten) business days of the Effective
Date of
this Agreement.
Thorium
Power shall invoice ENEC monthly for Professional Fees. The invoice shall
include a description of the resources agreed between the Parties for the
corresponding period, a summary of work performed and the corresponding amounts.
If ENEC and Thorium Power agree to reduce or increase the staff provided
by
Thorium Power (in accordance with Article
2 (Staff Management),
the
amount of this monthly compensation will be reduced or increased to reflect
the
then current cost of the staff, adjusted according to the previously agreed
rates by the Parties for corresponding levels of staff. If
the
cumulative invoiced amounts are less than the 2008 Q3/Q4 ENEC Project
Professional Fees, invoiced
amounts shall be credited against the 2008 Q3/Q4 ENEC Project Professional
Fees
pre-paid by ENEC until the 2008 Q3/Q4 ENEC Project Professional Fees are
reached
with no further payment obligation by ENEC. When the cumulative invoiced
amounts
exceed the 2008 Q3/Q4 ENEC Project Professional Fees, payment shall be handled
in accordance with Section 3 of this ATTACHMENT
D-COMPENSATION..
|
2.
|
Expenses
|
ENEC
shall reimburse Thorium Power for reasonable out of pocket expenses properly
incurred by Thorium Power or its agents or subcontractors and directly
attributable to the provision of the Services provided hereunder, including,
without limitation, travel, subsistence and other expenses directly attributable
to the provision of Services, provided however that such expenses shall not
exceed twenty percent (20%) of the Professional Fees earned by Thorium Power
on
a rolling, cumulative basis without the prior written approval of ENEC. For
the
avoidance of doubt, expenses shall not include general overhead of Thorium
Power
or any professional fees paid to agents or subcontractors of Thorium Power.
The
expenses shall be billed to ENEC at cost without any administrative charge.
Business-class travel shall be authorized for international travel.
For
avoidance of doubt, Thorium Power shall, unless explicitly agreed by the
Parties, not be responsible for costs related to ENEC staff or ENEC’s
subcontractors, including corresponding recruiting expenses (including
recruiting costs paid to search firms). Moreover, it is assumed that Thorium
Power staff will work out of out of office space provided or paid by ENEC
when
in the UAE.
|
3.
|
Invoices
|
Except
as
stated in Section 1 of this ATTACHMENT
D– COMPENSATION,
ENEC
will pay invoices for Professional Fees and Expenses under this Agreement
within
thirty (30) calendar days of receipt of an invoice. Invoices shall
be
All
payments due to Thorium Power hereunder shall be made in U.S. dollars by
wire
transfer of immediately available funds to the following account:
29
Beneficiary
Name: Thorium Power, Ltd.
Bank
Name: Bank of America
State
in
which bank account was opened: Virginia
Bank’s
SWIFT Code: XXXXXX0X
Beneficiary’s
Account #: 004131870642
|
4.
|
Offsets
|
ENEC
may
offset invoice payments to reflect amounts owing from Thorium Power pursuant
to
this Agreement.
|
5.
|
Taxes
|
Thorium
Power shall follow the direction ENEC concerning the payment of taxes in
the
UAE. The Professional Fees and Expenses to be paid by ENEC to Thorium Power
as
stated in this ATTACHMENT
D– COMPENSATION shall
include compensation for all taxes, other than income taxes paid in the United
States, that are borne by Thorium Power as a result of its performance hereunder
including, without limitation, sales, use, and value-added taxes. State and
local sales and use taxes shall be stated separately and shown on all invoices
as a separate line item. Upon request of ENEC, Thorium Power shall promptly
provide to ENEC evidence of payment of all state and local sales, use, and
value-added taxes.
|
6.
|
Record
Keeping
|
Thorium
Power shall keep accurate and complete accounting records in support of
reimbursable Expenses payable by ENEC in accordance with generally accepted
accounting principles governing Thorium Power’s operations.
30
