CONSULTING AGREEMENT
This consulting agreement (this "Agreement") is made the 15th day of
September 2003 by and between Otish Mountain Diamond Corp., a Nevada corporation
(the "Company"), and Xxxxxx St. Pierre (the "Consultant").
RECITALS
WHEREAS, the Company wishes to engage the Consultant as Chief Technical
Advisor with respect to certain aspects of its business;
WHEREAS, the Consultant is willing to provide services as Chief Technical
Advisor to the Company provided for in the Agreement as set forth below;
AGREEMENT
NOW THEREFORE, in consideration of the premises and the respective
covenants and agreements of the parties herein contained, the parties hereto
agree as follows:
1. TERM
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The term of this Agreement shall commence on the date hereof and ends at the
discretion of Otish Mountain Diamond Corp. upon notification to the Consultant
by the Company. Such notification should take place before the end of the
calendar month, otherwise the Consultant will receive the agreed upon 2 days
minimum pay.
2. CONSULTING SERVICES
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(a) Services Consultant agrees to provide services as Chief Technical
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Advisor utilizing his background as a geophysicist.
(b) Compensation. In consideration of the consulting services set forth in
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paragraph 2 (a), and subject to the terms and conditions set forth herein the
Company hereby agrees to pay Consultant CDN$500 per day and each day shall
consist of a minimum of 8 hours. Consultant will provide services for a minimum
of 2 days per month.
(c) Expenses. During the term of the Consultant's engagement hereunder,
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the Consultant shall be entitled to receive prompt reimbursement for all
reasonable expenses incurred by the Consultant in performing services hereunder.
3. CONFIDENTIAL INFORMATION
(a) Confidential Information. In connection with the providing of
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Consulting Services, hereunder, the Company may provide the Consultant with
information concerning the Company which the Company deems confidential (the
"Confidential Information"). The Consultant understands and agrees that any
Confidential Information disclosed pursuant to this Agreement is secret,
proprietary and of great value to the Company, which value may be impaired if
the secrecy of such information is not maintained. The Consultant further
agrees that it will take reasonable security measures to preserve and protect
the secrecy of such Confidential Information, and to hold such information in
confidence and not to disclose such information, either directly or indirectly
to any person or entity during the term of this agreement or any time following
the expiration or termination hereof; provided, however, that the Consultant may
disclose the Confidential Information to an assistant to whom disclosure is
necessary for the providing of services under this agreement.
(b) Exclusions. For purposes of this paragraph 3, the term
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Confidential Information shall not include Information which (i) becomes
generally available to the public other than as a result of a disclosure by the
Consultant or his assistants, agents or advisors, or (ii) becomes available on a
non-confidential basis to the Consultant from a source other than the Company or
its advisors, provided that such source is not known to the Consultant to be
bound by a Confidentiality agreement with or other obligation of secrecy to the
Company or another party.
(c) Government Order. Notwithstanding anything to the contrary in this
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Agreement, the Consultant shall not be precluded from disclosing any of the
Confidential Information pursuant to a valid order of any governmental or
regulatory authority, or pursuant to the order of any court or arbitrator.
(d) Injunctive Relief. The Consultant agrees that, since a violation
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of this paragraph 3 would cause irreparable injury to the Company, and that
there may not be an adequate remedy at law for such violation, the Company shall
have the right in addition to any other remedies available at law or in equity,
to enjoin the Consultant in a court of equity for violating the provisions of
this paragraph 3.
4. INDEMNIFICATION
(a) The Company shall indemnify the Consultant from and against any and
all expenses (including attorneys' fees), judgments, fines, claims, causes of
action, liabilities and other amounts paid (whether in settlement or otherwise
actually and reasonably incurred) by the Consultant in connection with such
action, suit or proceeding if (i) the Consultant was made a party to any action,
suit or proceeding by reason of the fact that the Consultant rendered advice or
services pursuant to this Agreement, and (ii) the Consultant acted in good faith
and in a manner reasonably believed by the Consultant to be in or not opposed to
the interests of the Company, and with respect to any criminal action or
proceeding, had no reasonable cause or believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the Consultant did not act in good faith in or
not opposed to the best interests of the Company, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his conduct
was unlawful. Notwithstanding the foregoing, the Company shall not indemnify
the Consultant with respect to any claim, issue or matter as to which the
Consultant shall have been adjudged to be liable for gross negligence or willful
misconduct in the performance or other duties pursuant to this Agreement unless
and only to the extent that the court in which such action or suit was brought
shall determine upon application that, despite the adjunction of liability, but
in view of all the circumstances of the case, the Consultant is fairly and
reasonably entitled to indemnity for such expenses which such court shall deem
proper.
(b) The Consultant shall indemnify the Company from and against any and
all expenses (including attorney's fees), judgments, fines, claims, causes of
action, liabilities and other amounts paid (whether in settlement or otherwise
actually and reasonably incurred) by the Company in connection with such action,
suit or proceeding if (i) the Company was made a party to any action, suit or
proceeding by reason of the fact that the Consultant rendered advice or services
pursuant to this Agreement, and (ii) the Consultant did not act in good faith
and in a manner reasonably believed by the Consultant to be in or not opposed to
the interests of the Company, and with respect to any criminal action or
proceeding, did not reasonably believe his conduct was unlawful.
Notwithstanding the foregoing, the Consultant shall not indemnify the Company
with respect to any claim, issue or matter as to which the Company shall have
been adjudged to be liable for gross negligence or willful misconduct in
connection with the performance of the Consultant's duties pursuant to this
Agreement unless and only to the extent that the court on which such action or
suit was brought shall determine upon application that, despite the adjunction
of liability, but in view of all circumstances of the case, the Company is
fairly and reasonably entitled to indemnity for such expenses which such court
shall deem proper.
5. INDEPENDENT CONTRACTOR STATUS
It is expressly understood and agreed that this is a consulting agreement
only and does not constitute an employer-employee relationship. Accordingly,
the Consultant agrees that the Consultant shall be solely responsible for
payment of his own taxes or sums due to the federal, state, or local
governments, overhead, workmen's compensation, fringe benefits, pension
contributions and other expenses. It is further understood and agreed that the
Consultant is an independent contractor and the Company shall have no right to
control the activities of the Consultant other than during the express period of
time in which the Consultant is performing services hereunder, and that such
services provided hereunder and not because of any presumed employer-employee
relationship. The Consultant shall have no authority to bind the Company.
The parties further acknowledge that the Company's services hereunder are
not exclusive, but that the Consultant shall be performing services and
undertaking other responsibilities, for and with other entities or persons,
which may directly or indirectly compete with the Company. Accordingly, the
services of the Consultant hereunder are on a part time basis only, and the
Company shall have no discretion, control of, or interest in, the Consultant's
services which are not covered by the terms of the Agreement. The Company
hereby waives any conflict of interest which now exists or may hereafter arise
with respect to Consultant's current employment and future employment.
6. NOTICE
All notices provided by this Agreement shall be in writing and shall be
given by facsimile transmission, overnight courier, by registered mail or by
personal delivery, by one party to the other, addressed to such other party at
the applicable address set forth below, or to such other address as may be given
for such purpose by such other party by notice duly given hereunder. Notice
shall be deemed properly given on the date of the delivery.
To Consultant: Xxxxxx St. Pierre
0000 Xxxxxxxx Xxxx
Xxxxxxxxx, XX
Xxxxxx, X0X 0X0
To the Company: Otish Mountain Diamond Corp.
7. MISCELLANEOUS
(a) Waiver. Any term or provision of this Agreement may be waived at
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any time by the party entitled to the benefit thereof by a written instrument
duly executed by such party.
(b) Entire Agreement. This Agreement contains the entire understanding
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between the parties hereto with respect to the transactions contemplated hereby,
and may not be amended, modified, or altered except by an instrument in writing
signed by the party against whom such amendment, modification, or alteration is
sought to be enforced. This Agreement supercedes and replaces all other
agreements between the parties with respect to any services to be performed by
the Consultant of behalf of the Company.
(c) Governing Law. This Agreement shall be construed and interpreted
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in accordance with the laws of the State of Nevada.
(d) Binding Effect. This Agreement shall bind and inure to the benefit
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of the parties hereto and their respective heirs, executors, administrators,
successors and assigns.
(e) Construction. The captions and headings contained herein are
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inserted for convenient reference only, are not a part hereof and the same shall
not limit or construe the provisions to which they apply. Reference in this
agreement to "paragraphs" are to the paragraphs in this Agreement, unless
otherwise noted.
(f) Expenses. Each party shall pay and be responsible for the cost and
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expenses, including, without limitation, attorney's fees, incurred by such party
in connection with negotiation, preparation and execution of this Agreement and
the transactions contemplated hereby.
(g) Assignment. No party hereto may assign any of its rights or
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delegate any of its obligations under this Agreement without the express written
consent of the other party hereto.
(h) No Rights to Others. Nothing herein contained or implied is
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intended or shall be construed to confer upon or give to any person, firm or
corporation, other than the parties hereto.
(i) Counterparts. This Agreement may be executed simultaneously in two
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counterparts, each of which shall be deemed an original, but both of which
together shall constitute one and the same agreement, binding upon both parties
hereto, notwithstanding that both parties are not signatories to the original or
the same counterpart.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date and
year first above written.
OTISH MOUNTAIN DIAMOND CORP.
/s/ Xxx Xxxxxxx
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By: Xxx Xxxxxxx, Chief Executive Officer
CONSULTANT
/s/ Xxxxxx St. Pierre
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Xxxxxx St. Pierre
