EXHIBIT 10.20.1
STATEMENT OF INTENT AND
CONFIDENTIALITY AGREEMENT
THIS STATEMENT OF INTENT AND CONFIDENTIALITY AGREEMENT ("Agreement") is
made and entered into this 23rd day of January, 2004 by and between the
Selnek-is Tem-Al Corporation on behalf of the Xxxxxx Xxxxxxxx Desert Cahuilla
Indians, ("STC"), a federally recognized Tribe, whose address is X.X. Xxx 000,
00000 Xxxxxxxx Xx, Xxxxxxx, Xxxxxxxxxx 00000, and Western Goldfields, Inc.
("WGI"), an Idaho Corporation, whose residence is 000 Xxxx Xxxxx Xxxx X, Xxxxx
000, Xxxx, Xxxxxx 00000.
RECITALS
--------
WHEREAS: STC is interested in entering into an agreement for the
exploration, development, and mining of the Cahuilla Gold Project ("Project")
with WGI;
WHEREAS: WGI is interested in providing STC a formal exploration,
development, and mining agreement for the Project;
WHEREAS: WGI recognizes that STC has developed or acquired technical and
other proprietary information of a confidential nature relating to the operation
and management of the Project, including but not limited to, know how,
processing information, steps and parameters, present and future methods and
equipment, business plans, and other data;
WHEREAS: STC recognizes that WGI has developed or acquired technical and
other proprietary information of a confidential nature relating to its
involvement in the mining industry and other related industries, including but
not limited to financial information;
WHEREAS: WGI wishes to be guaranteed the exclusive right to prepare and
execute a formal exploration and mining agreement for the Project;
WHEREAS: the parties wish to insure that confidential information that may
be disclosed by one to the other is treated in confidence and is used solely for
agreed upon purposes
WHEREAS: WGI desires to receive confidential information from STC, and STC
desires to receive confidential information from WGI, both for the limited
purpose of evaluating the suitability of entering into a business relationship,
and each party recognizes the importance of keeping such information in
confidence;
NOW, THEREFORE, in consideration of the Recitals hereinabove mentioned and
the terms, conditions, covenants, and warranties hereinafter mentioned to be
kept, honored, and performed by the parties, it is hereby agreed as follows:
TERMS AND CONDITIONS
--------------------
1. TERM; EXCLUSIVITY:
a. For a period of three (3) months, commencing upon the execution
of this Letter of Intent, as approved by the parties, neither WGI nor the STC
shall negotiate with third parties nor make information available to any other
third party concerning the Project. The parties may extend this period of
exclusive negotiations by mutual, written agreement, if necessary. During this
term, WGI will endeavor to complete a formal exploration/mining agreement as
quickly as possible. Execution of any form of exploration/mining agreement
entered into between WGI and STC shall act to terminate this agreement, and
exclusivity shall from then on be governed by the terms of such agreement.
b. In good faith, WGI agrees to provide STC a one-time payment of
$10,000 during the term of this Agreement. This payment shall be submitted to
STC within on week upon execution of this Letter of Intent. This good faith
payment is completely independent of and has no association to or bearing upon
the formal exploration/mining agreement.
2. ACCESS:
a. During the term of this agreement, the STC shall allow and
assist in the access by WGI to technical data for the Project in possession of
the Bureau of Indian Affairs ("BIA") Division of Energy and Minerals, Lakewood,
Colorado, which data was approved for public use by the Tribe and the BIA in
1999.
b. During the term of this agreement, the STC shall allow WGI
access to the Project site for the purpose of conducting geologic site visits
for evaluation purposes. WGI shall notify the Tribe at least ten (10) days in
advance of such site tours. Site activities shall be limited to the evaluation
of geology and hand collection of rock samples. Because such site tours shall be
so limited, they shall not constitute or be deemed mineral development or
exploration and will require no environmental permits or formal contact with
regulators.
3. COSTS: WGI shall be responsible for all costs associated with
conducting the Project evaluation, including but not limited to data
reproduction, travel expenses, and other general business expenses.
4. EMPLOYMENT OF TRIBAL MEMBER: With the consent of the STC, WGI may,
from time to time as needed, be assisted by a member of the STC to aid in its
evaluation program. Employment of any such individual must be approved by STC,
and WGI shall reasonably compensate such individual for his or her time and
expenses incurred.
5. OWNERSHIP OF DOCUMENTS: The Tribe shall have the exclusive right to
and ownership of all technical data and other documents that are generated
during the term of this agreement.
6. REPORTS: WGI shall provide to the Tribe monthly written reports
that, specificity, summarize the progress of the evaluation of the project.
7. PREPARATION OF DOCUMENTS: The process of reaching agreement on the
Project will result in the execution of a exploration/ mining agreement that
will set forth in detail the parties' mutual understandings, rights, and
obligations, for the overall Project. Such exploration/mining agreement shall
contain terms and conditions, similar in nature to those contained in the 1995
agreement executed between the Band and Kennecott Corporation. WGI shall provide
the STC and its attorney proposed agreements in hard copy and electronic storage
format.
8. CONFIDENTIALITY:
a. "Confidential Information" shall mean any confidential
information supplied by one party to the other in written, geographic,
photographic, or other tangible form, and any Confidential Information so
supplied shall be marked as "confidential." Any Confidential Information that is
disclosed in oral form shall be confirmed in written summary form within thirty
(30) days after disclosure to the recipient and shall be marked "confidential."
Confidential Information shall not include information already in public domain
when delivered by either party, even if marked "confidential."
b. Upon receipt of any information marked "confidential," either
party, within ten (10) days of receipt may request in writing an explanation as
to the need for such information to remain "confidential."
c. Each party agrees that for a period of ten (10) years from the
date it receives any Confidential Information from the other party, it will
limit its use thereof to the evaluation of the suitability of entering into a
business relationship with the other and for the additional purpose, if deemed
appropriate by both parties, of negotiating the terms and conditions of an
agreement between them, and for no other purpose unless the parties otherwise
agree in writing.
d. Each party agrees that, for a period of ten (10) years from the
date it receives any Confidential Information from the other party it will
maintain confidence and not disclose any information it received other than to
employees, agents or vendors who have need to know the Confidential Information
for the purpose described herein and who are similar obligations of
confidentiality and non-use.
e. Each party agrees not to make many copies in whole or in part
of Confidential Information belonging to the other or to analyze samples of
tangible materials included herein, and further agrees, upon request by the
other party, to return all tangible materials, including documents furnished
hereunder and any notes or memoranda of
conversations relating hereto, including any copies thereof, except the
recipient may retain one copy of each such writing in its legal department in
order to be able to monitor its obligations hereunder.
f. Each party shall be held to at least the same standard of care
in protecting any confidential Information received from the other as it
normally employs to preserve and safeguard its own Confidential Information of a
similar kind.
g. No right or license under any patent application, patent, or
any other proprietary right is granted hereunder by implication or otherwise and
no commercial obligation the part of either party is intended or undertaken.
h. Notwithstanding the other provisions of this agreement, either
party may disclose Confidential Information if required to make such disclosure
in response to valid legal process; provided that such party shall make no such
disclosure without giving the other party immediate written notice of such
process and the opportunity to intervene and object to disclosure.
9. TERMINATION
a. Either party may terminate this agreement at any time, without
cause, upon thirty (30) days written notice.
b. In the case of material breach of this Agreement by WGI, the
STC may terminate this Agreement immediately. For the purpose of this agreement,
"material breach" means willful neglect of any duty imposed by the STC or any
violation of terms in this Agreement.
10. GOVERNING LAW: This Agreement shall be deemed to have been
negotiated and written by both parties and shall be construed and performed in
accordance with applicable Tribal federal law. Notwithstanding any provision of
this Agreement to the contrary, and except as preempted by federal or Tribal
law, the parties intend that, in any dispute or controversy arising out of or
involving this Agreement, this Agreement shall be construed according to the
applicable laws of the STC; provided that, in the absence of such applicable
laws, this agreement shall be construed using principles of the contract laws of
the State of California as guidance. This provision is not intended, nor shall
it be construed, to incorporate or accede to the applicability of any laws of
the State of California.
11. DISPUTE RESOLUTION: If a dispute arises between the parties as to
any provision of this Agreement, the parties agree that the dispute will be
settled by arbitration. If the STC and the WGI mutually agree on the identity of
the arbitrator, such arbitrator may hear and decide the dispute an issue. Where
the STC and the WGI are unable to agree on the identity of a single arbitrator,
the Tribe will name one, WGI will name one, and the two so chosen will name a
third arbitrator. Procedure for conducting the arbitration hearing will be
governed by the rules of the American Arbitration Association, or such other
rules agreed upon by the parties, and the decision of the arbitrator(s) will be
binding upon both parties.
The parties agree to share arbitration fees and costs equally. Nothing in this
Section shall be deemed to be a waver of the Tribe's immunity from suit. Any
agreement the parties might decide to abide by any rules, including but not
limited to the Rules of the American Arbitration Association, to resolve
disputes shall not be deemed in any way to constitute a waiver of the STC's
immunity.
12. ATTORNEYS' FEES: In the event it is necessary to xxx to enforce
terms and provisions of this agreement, or in the event of any breach thereof,
the prevailing party in such action shall be entitled to recover, in addition to
all other relief granted, all reasonable attorney's fees and costs expended in
the prosecution or defense of such action.
13. SEVERABILITY: In the event that any term or provision in this
Agreement shall be held invalid or unenforceable by a court of competent
jurisdiction, such holdings shall not invalidate or render unenforceable any
other term or provision of this Agreement.
14. SOVEREIGN IMMUNITY: The Parties acknowledge that the Tribe
possesses immunity from suit. Except as specifically provided in this section,
nothing in this Agreement is or shall be deemed to be a waiver of the Tribes'
immunity, which immunity is expressly asserted; provided, however, to the extent
permitted by law or regulation, the Tribe hereby expressly unequivocally, and
irrevocably waives any immunity from suit it may enjoy for the limited and sole
purpose of enforcing rights and specific remedies granted under this Agreement
and consents and attorns to the personal jurisdiction of any court of competent
jurisdiction with respect to any action, except one for monetary damages. This
waiver is not intended, nor shall it be construed, to waive the immunity of the
Tribe for any other purpose or with respect to any claim or other matter not
specifically mentioned, and is not intended to, nor shall it, extend to the
benefit of any person other than WGI and the Tribe, their successors, and their
assigns.
15. INDEMNIFICATION:
a. In consideration of the terms and conditions of this Agreement,
the STC hereby agrees to indemnify WGI and its agents, employees, and assigns,
and hold them harmless for and form any and all liabilities, claims, costs,
losses, and damages (not including reasonable attorney's fees) arising out of or
resulting from any prior agreement or contract with a third party if the subject
matter of such prior agreement or contract is similar or identical to that
contained in this Agreement and is in conflict with the terms and conditions
herein.
b. In consideration of the terms and conditions of this Agreement,
the WGI hereby agrees to indemnify STC and its agents, employees, and assigns,
and hold them harmless for and form any and all liabilities, claims, costs,
losses, and damages (not including reasonable attorney's fees) arising out of or
resulting from any entry upon Tribal lands by WGI, its agents, employees,
contractors, subcontractors, and assigns pursuant to the terms and conditions of
this Agreement or raising from any accident or casualty thereon or form nay
cause whatsoever under or in relation to this Agreement.
16. NO IMPLIED WAIVER: The failure of either party at any time to
require performance of any provision hereof shall in no way affect the full
right to require such performance anytime thereafter. Further, the waiver by
either party of a breach of any provision hereof shall not constitute a waiver
of provision itself or any other succeeding breach of the same or any other such
provision.
17. ASSIGNMENT: This Agreement shall no be assigned in whole or in part
without written consent of the parties.
18. BINDING PROVISIONS: The provisions of this agreement shall be
binding on the parties, their successors, and their assigns in like manner as on
the original parties unless modified by mutual written agreement.
19. NOTICE: All notices or demands required or permitted to be given
hereunder shall be in writing and shall be (i) delivered by certified mail to
the U.S. Postal Service, pre-paid postage or (ii) hand-delivered by a courier or
by a nationally recognized and reputable overnight delivery service. Each notice
shall, for all purposes, be deemed given and received: (i) if given by certified
mail, return receipt requested, postage prepaid, when the return receipt is
signed; or (ii) if given by a national overnight delivery service, when the
notice is actually received by the party. The notice shall be given to the party
at its address first set fourth above or at such other address as the party may
later specify for that purpose by Notice to the other party. The provisions in
this Section governing the day on which a Notice is deemed to have been received
shall mean and refer to the date on which the intended party, and its council or
other recipient to which a copy of the Notice may be sent, is deemed to have
received the notice. If the Notice is tendered under the provisions of this
Section and is refused by the intended recipient of the Notice, the Notice shall
nonetheless be considered to have been given and shall be affective as of the
date tendered. The contrary notwithstanding, any Notice given in a manner other
than that provided above, but actually received by the party, shall be effective
upon receipt.
20. DELAY OR OMISSION: No delay or omission to exercise any right,
power, or remedy accruing under this Agreement shall impair such right, power,
or remedy, nor shall it be construed to be a waiver of or acquiescence in a
breach of or default under the Agreement. BOTH PARTIES SPECIFICALLY AND
AFFIRMATIVELY AGREE NOT TO CONSTRUE THE CONDUCT, DELAY, OR OMISSION OF THE OTHER
PARTY AS ALTERING IN ANY WAY THE PARTIES' AGREEMENTS AS DEFINED IN THE
AGREEMENT. Any waiver, permit, or approval of any breach of or default under
this Agreement must be in writing, and, because the language of this Section was
negotiated and intended by both parties to be binding and is not a mere recital,
both parties hereby agree that they will not raise waiver or estoppel as
affirmative defenses so as to limit or negate the clear language and intent of
this Section. All remedies, either under this Agreement, by law, or otherwise
afforded to either party shall be cumulative, not alternative.
21. HEADINGS: The headings to the various Sections of this
agreement are inserted only for convenience of reference and are not intended,
not shall be construed, to modify, define, limit, or expand the intent of the
parties.
22. ENTIRE AGREEMENT; MODIFICATION: This agreement constitutes the
final and entire agreement between the parties, and there is no other agreement
or promise on the part of either party to do or omit to do any act or thing not
herein mentioned. This Agreement is intended as a complete and exclusive
statement of the terms and conditions of the parties' agreement and may not be
effectively amended, changed, modified, or altered without the written consent
of both parties.
23. COUNTERPARTS: This Agreement may be executed in one or more
counterparts, each of which shall constitute an original.
IN WITNESS WHEREOF, the parties hereto have set their hands:
Selnek-is Tem-Al (Red Earth) Corporation
/s/ Xxxxxx Xxxxxx
-------------------
By: Xxxxxx Xxxxxx, Chairman
Attest:
By: ___________________________
Western Goldfields, Inc.
/s/ Xxxxxx X. Xxxxxxx
------------------------
By: Xxxxxx X. Xxxxxxx, President & CEO
Attest:
By: _______________________________
_____________, its __________
