EXHIBIT 10.31
RECLAMATION CONSULTING AND APPLICATIONS, INC.
ADVISORY BOARD SERVICES AGREEMENT
THIS ADVISORY BOARD SERVICES AGREEMENT (the "AGREEMENT") is made on October 16,
2006 (the "EFFECTIVE DATE") by and between Reclamation Consulting and
Applications, Inc., a Colorado corporation (the "COMPANY"), and Xxxxxx X. Xxxx,
an individual residing at 0000-000 Xxx Xxxxxx Xxxxxx, X.X. Xxxxxxx, Xxxxxxx,
Xxxxxx, (the "ADVISOR").
WHEREAS, the Company has established a Board of Advisors to assist the
Company and its Board of Directors in the development of a comprehensive
business strategy; and
WHEREAS, the Advisor has extensive experience and important contacts in
the mining, oil sands, and drilling industries in Canada to which the
Company intends to market its Alderox (R) line of products and services; and
WHEREAS, the Company desires to engage the Advisor as a member of its
Board of Advisors to assist the Company in its efforts to gain exposure for its
Aldrerox (R) line of products in the above-stated industries and the Advisor
desires to accept such engagement by the Company.
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties intending to be
legally bound, hereby agree as follows:
1. TERM. The Company hereby agrees to engage the Advisor, and the Advisor
hereby agrees to serve as a member of the Board of Advisors of the
Company (the "ADVISORY BOARD") for a period commencing on October 16,
2006, (the "ENGAGEMENT DATE") and ending one (1) year from the
Engagement Date (this period, subject to earlier termination or
extension as provided, is referred to as the "TERM").
2. DUTIES AND SERVICES.
(A) During the Term of this Agreement, the Advisor agrees to serve
as a member of the Advisory Board by performing the following
duties and services (the "SERVICES"):
(I) to attend meetings of the Advisory Board;
(II) to use best efforts in providing advice to the Company
on matters within the Advisor's expertise, from time to
time as requested by the Company; and
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(III) to perform such other reasonable and appropriate duties
as may be requested of the Advisor by the Company, in
accordance with the terms of this Agreement.
(B) The Advisor shall devote the amount of his/her time and effort
to the business and affairs of the Company as is necessary to
fulfill his/her duties to promote the interests of the Company.
The Company and the Advisor agree and acknowledge that various
factors, including the Company's possible expansion of its
operations and business interests being pursued at that time,
may require the Advisor to devote a significantly greater number
of hours to the Company's business from time to time. Subject to
the limitations of Section 5 below, and provided that business
activities related to the Company do not materially interfere
with the Advisor's ability to fulfill his obligations, the
Advisor may engage in outside business activities during the
Term of this Agreement.
3. COMPENSATION AND EXPENSES.
(A) COMPENSATION. Provided that the Advisor satisfactorily performs
his obligations under this Agreement, the Company will
compensate the Advisor as set forth on SCHEDULE A attached to
this Agreement.
(B) EXPENSES. The Company will reimburse the Advisor for all
reasonable travel expenses that are (i) directly related to the
Services performed hereunder, and (ii) approved of in writing in
advance by the Company.
4. TERMINATION. Notwithstanding the provisions of Section 1, the Advisor's
engagement hereunder may be terminated by the Company or the Advisor, as
applicable, under the following circumstances:
(A) CAUSE. The Company may terminate the Advisor's engagement
hereunder for Cause (as defined below). For purposes of this
Agreement the term "CAUSE" shall mean that the Company may
terminate the Advisor's engagement hereunder upon a finding by
the Board of Directors that the Advisor has (i) engaged in acts
or omissions with respect to the Company or any affiliate of the
Company which constitute intentional misconduct or a knowing
violation of law as reasonably determined by the disinterested
members of the Board of Directors; (ii) personally received a
benefit in money, property or services from the Company or any
affiliate of the Company or from another person or entity
dealing with the Company in violation of this Agreement or
applicable law, including any payment from a person or entity
dealing with the Company or involved in any way in any
transaction in which the Company is a party, unless previously
disclosed to, and expressly approved by, the disinterested
members of the Board of Directors; (iii) breached any material
provision of this Agreement, including without limitation
Section 5 or 6; (iv) engaged in gross negligence in the
performance of duties to the Company or any affiliate of the
Company; (v) repeatedly failed to perform Services for the
Company or any affiliate of the Company which were reasonably
requested by the Board of Directors and which are consistent
with the terms of this Agreement; or (vi) been convicted of a
felony. For purposes of this Agreement, the Company shall also
have Cause to terminate the Advisor's engagement upon the
decision of the Board of Directors to cause the Company to cease
the operation of its business. In the event of such a decision
to cause the Company to cease the operation of its business,
this Agreement shall terminate as of the earlier of (i) the date
that the operations cease or (ii) thirty (30) days following
notice to the Advisor that the Board of Directors has
determined, in its sole discretion, that the Advisor's Services
are no longer required. This Agreement shall automatically
terminate for Cause upon the death or Disability of the Advisor.
Disability, as referred to in this Agreement, means the
Advisor's failure to perform its duties for a stay of six (6)
consecutive weeks during any twelve (12) month period due to
mental or physical illness.
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(B) MUTUAL AGREEMENT. The Advisor's engagement may be terminated at
any time by mutual written agreement between the Advisor and the
Company.
(C) EXTENSION. Within thirty (30) days prior to the end of the Term,
the Company shall notify the Advisor if it wants to renew the
Term, and in the event that the Advisor agrees, the renewal
shall be for successive periods of one (1) year.
5. CONFIDENTIALITY AND NON-COMPETITION.
(A) CONFIDENTIAL MATERIALS. The Company and the Advisor acknowledge
that the Services to be performed by the Advisor under this
Agreement are unique and extraordinary and, as a result of such
engagement, the Advisor will be in possession of confidential
information and trade secrets (collectively, "CONFIDENTIAL
MATERIAL") relating to current, previous and/or future business
practices of the Company. The Advisor agrees that he will not,
directly or indirectly, (i) disclose Confidential Material to
any other person or entity either during or after his Engagement
by the Company or (ii) use, except during his engagement by the
Company in the business and for the benefit of the Company, any
Confidential Material acquired by the Advisor during his
engagement by the Company, without the prior written consent of
the Company, which consent must be obtained by an appropriate
officer of the Company, or as otherwise required by law or any
rule or regulation of any federal or state authority. Upon
termination of his/her engagement with the Company for any
reason, the Advisor shall return to the Company all tangible
manifestations of Confidential Material and any copies.
(B) NON-COMPETITION. The Advisor agrees that during the Term hereof,
without the prior written consent of the Board of Directors, he
will not become a stockholder, other than as a holder of less
than one percent (1%) of the outstanding stock of a public
company, member, director, officer, advisor or agent of or
consultant to any corporation, or member of or consultant to any
partnership or other entity, or engage in any business as a sole
proprietor or act as a consultant to any such entity, or
otherwise engage, directly or indirectly, in any enterprise, in
each case which competes directly with any business engaged in,
or known by the Advisor to be contemplated to be engaged in, by
the Company. The Advisor shall be deemed to know a business is
"contemplated to be engaged in" by the Company when he is
advised by the Company's Chairman of the Board, President, Chief
Executive Officer or Chief Operations Officer that the Company
has determined to pursue that particular business activity.
Notwithstanding the foregoing, in the event that the Advisor
desires to provide services as a consultant, agent or advisor
(but not otherwise) to any entity engaged in a competitive
business or activity of the Company as described above, the
Advisor must provide at least three (3) working days' advance
written notice of such proposed engagement to the Company. If
the Company has not expressed, in writing, its reasonable
objection to such engagement to the Advisor within three (3)
working days after receiving such notice, the Advisor shall
thereafter be deemed to be authorized by the Company to proceed
with such engagement. The Advisor agrees that during the
non-compete period referred to in this Section 5, neither the
Advisor nor any person or enterprise controlled by the Advisor
will solicit for engagement any person employed by the Company
at, or at any time within three (3) years prior to, the time of
the solicitation.
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(C) INJUNCTIVE RELIEF. The Advisor agrees that any remedy at law for
any breach by him of this Section 5 would be inadequate and that
the Company shall be entitled to injunctive relief.
6. SURVIVAL. Not withstanding anything to the contrary, the obligations of
the Advisor under Section 5 above shall survive the termination of this
Agreement.
7. INDEPENDENT CONTRACTOR. The Advisor shall be, and shall be deemed for
all purposes to be, an independent contractor of, and not an employee
of, the Company, and shall not participate in any employee benefit
programs of the Company. The Advisor shall not be required to perform
his Services during any given hours, attend meetings of employees, make
reports required of employees or otherwise be accountable to the Company
except as expressly set forth in this Agreement and any Schedule
attached hereto and as amended from time to time during the Term hereof.
Except as otherwise required by law, the Company shall not withhold any
sums from the payments to be made for Social Security or other federal,
state or local tax liabilities or contributions, and all tax
withholdings, liabilities and contributions shall be solely the
responsibility of the Advisor.
8. GOVERNING LAW; VENUE. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of California, without
giving effect to the law of conflicts of laws applied thereby. Any
dispute between the parties arising out of or related to the
construction, interpretation, enforcement or any other aspect of this
Agreement shall be resolved in the County of Orange, State of
California, as the exclusive forum selection of the parties. In the
event either party shall be forced to bring any legal action to protect
or defend its rights hereunder, then the prevailing party in such
proceeding shall be entitled to reimbursement from the non-prevailing
party of all fees, costs and other expenses (including, without
limitation, the reasonable expenses of its attorneys) in bringing or
defending against such action.
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9. ABSENCE OF AUTHORITY. The Advisor does not have, nor shall the Advisor
hold itself out as having, any right, power or authority to create any
contract or obligation, whether express or implied, on behalf of, in the
name of, or binding upon the Company, or to pledge or encumber any of
the Company's assets, or to extend credit in the Company's name, unless
the Company shall have delivered its prior written consent thereto.
10. NOTICES. All notices, requests, demands and other communications to be
given hereunder shall be in writing and shall be deemed to have been
duly given on the date of personal service or transmission by fax if
such transmission is received during the normal business hours of the
addressee, or on the first business day after sending the same by
overnight courier service or by telegram, or on the third business day
after mailing the same by first class mail, or on the day of receipt if
sent by certified or registered mail, addressed as set forth below, or
at such other address as any party may hereafter indicate by notice
delivered as set forth in this Section 10:
If to the Company: Reclamation Consulting and
Applications, Inc.
000 Xxxxx Xxxxxxxx, Xxxxx X,
Xxx Xxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx Xxxxxx
Chief Executive Officer
with a copy (which shall
not constitute notice) to: August Law Group, P.C.
00000 Xxx Xxxxxx Xxx., Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. August, Esq.
President
if to the Advisor: Xxxxxx X. Xxxx
0000-000 Xxx Xxxxxx Xxxxxx X.X.
Xxxxxxx, Xxxxxxx, Xxxxxx
11. BINDING AGREEMENT; ASSIGNMENT. This Agreement shall constitute the
binding agreement of the parties hereto, enforceable against each of
them in accordance with its terms. This Agreement shall inure to the
benefit of each of the parties hereto, and their respective heirs,
personal representatives, successors and assigns. This Agreement may not
be assigned by the Advisor, whether by operation of law or by contract,
without the prior, written consent of the Company.
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12. ENTIRE AGREEMENT. This Agreement constitutes the entire and final
agreement and understanding among the parties with respect to the
subject matter hereof and the transactions contemplated hereby, and
supersedes any and all prior oral or written agreements, statements,
representations, warranties or understandings by any party, all of which
are merged herein and superseded hereby.
13. FURTHER ASSURANCES. Each party agrees work in good faith with the other
to realize the parties' expressed intention as set forth herein. In such
regard the parties shall execute such other and further documents and
perform such other and further acts as may be reasonably necessary to
carry out the purposes and provisions of this Agreement.
14. WAIVER. No waiver of any provision of this Agreement shall be deemed to
be or shall constitute a waiver of any other provision, whether or not
similar, nor shall any waiver constitute a continuing waiver. No waiver
shall be binding unless executed in writing by the party making the
waiver.
15. SEVERABILITY. If any provision, paragraph, or subparagraph of this
Agreement is adjudged by any court of law to be void or unenforceable in
whole or in part, such adjudication shall not be deemed to affect the
validity of the remainder of the Agreement, including any other
provision, paragraph, or subparagraph. Each provision, paragraph, and
subparagraph of this Agreement is declared to be separable from each and
every other provision, paragraph, and subparagraph and constitutes a
separate and distinct covenant.
16. HEADINGS. The headings in this Agreement have been inserted for
convenience only and are not to be considered when constructing
provisions of this Agreement.
17. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
18. SPECIFIC PERFORMANCE. The parties hereby agree with each other that, in
the event of any breach of this Agreement by any party where such breach
may cause irreparable harm to any other party, or where monetary damages
may not be sufficient or may not be adequately quantified, then the
affected party or parties shall be entitled to immediate specific
performance, injunctive relief or such other equitable remedies as may
be available to it, which remedies shall be cumulative and
non-exclusive, and in addition to such other remedies as such party may
otherwise have at law or in equity. The parties expressly acknowledge
and agree that this Section 18 shall take precedence over the
arbitration provisions contained elsewhere in this Agreement under any
circumstance which meets the standards imposed in the first sentence of
this Section 18.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have set forth their hand as of
the date and year first above written.
THE ADVISOR: WITNESS:
/s/ Xxxxxx X. Xxxx /s/
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By: Xxxxxx X. Xxxx
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THE COMPANY:
RECLAMATION CONSULTING AND
APPLICATIONS, INC. ATTEST:
BY: /s/ Xxxxxx Xxxxxx BY: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx Name: Xxxxxxx Xxxxxx
Title: President Title: Chief Executive Officer
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SCHEDULE A
COMPENSATION
COMPENSATION. As compensation for the Advisor's Services, the Advisor shall be
entitled to receive the compensation set forth below, as the same may be amended
from time to time in accordance with the Agreement, as follows:
o WARRANTS TO PURCHASE SHARES. The Company hereby grants the
Advisor five hundred thousand (500,000) warrants (the
"WARRANTS") to purchase an equal number of restricted common
stock shares of the Company, at a price of Fifteen Cents ($0.15)
per share, as more fully set forth in the Warrant Certificate
issuable pursuant hereto, dated the date of the Agreement.
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