CONSULTING and LEGAL SERVICES AGREEMENT
Exhibit
10
THIS
AGREEMENT is made this November 28, 2007 (the “Effective Date”) by and between
Nuclear Solutions, Inc., a Nevada corporation (“Nuclear Solutions”) and ▇▇▇▇
▇▇▇▇▇▇, (“Frisco”).
BACKGROUND
A. Nuclear
Solutions wishes to engage Frisco in a variety of investor relations activities,
as set forth herein.
B. Frisco
wishes to accept such engagement on the terms and conditions set forth
herein.
NOW
THEREFORE, in consideration of the mutual agreements contained herein, the
parties agree as follows:
1. Services
Provided.
The
Consultant shall provide broad based investor/shareholder relations services
to
shareholders, current and potential investors of Nuclear Solutions, Inc. and
subsidiary companies.
Frisco
shall provide priority services under the terms of the contract for an expected
minimum of 160 hours per month and additionally as directed from time to time
by
the Chief Executive Officer of Nuclear Solutions (the “CEO”) during the Term of
this Agreement (collectively, the “Services”).
2. Consideration:
Compensation:
The
fair
market value of the services to be performed over the two year term of the
contract are agreed to be $240,000 In consideration for the Services to be
performed during the term following the Effective Date, upon execution, or
as
soon as practical in regards to Federal and State securities laws, Nuclear
Solutions shall issue 1,000,000 restricted (SEC Rule 144) shares valued at
$240,000 The share calculation is as follows: The 50 day moving average of
the
stock price on 11-28-07 is .48 which is then discounted by 50% due to the
restricted nature of the stock to give a basis price of .24 cents. $240,000/.24
yields 1,000,000 shares.
3. Additional
Consideration/Reimbursement.
Nuclear
Solutions shall reimburse Frisco for all reasonable expenses, provided such
expenses have been pre-approved in writing by Nuclear Solutions.
4. NO
Registration.
Nuclear
Solutions shall issue restricted common shares as defined and governed by SEC
Rule 144 to Frisco.
5. Term.
This
Agreement shall commence on the Effective Date and shall continue until May
28,
2009 (the “Term”), or unless otherwise terminated in accordance with the
provisions set forth in Section 9.
6. Proprietary
Rights; Disclosures of Intellectual Property.
All
work
performed under this Agreement, and all Services, materials, products,
deliverables developed or prepared for Nuclear Solutions by Frisco under this
Agreement, are the property of Nuclear Solutions and all title and interest
therein shall vest in Nuclear Solutions and shall be deemed to be a Work Made
for Hire and made in the course of performing the Services. To the extent that
title to any such works may not, by operation of law, vest in Nuclear Solutions
or such works may not be considered Works Made for Hire under applicable law,
all rights, title and interest therein are hereby irrevocably assigned to
Nuclear Solutions. All such materials shall belong exclusively to Nuclear
Solutions, with Nuclear Solutions having the right to obtain and to hold in
its
own name, copyrights, registrations or such other protection as may be
appropriate to the subject matter, and any extensions and renewals thereof.
Frisco agrees to give Nuclear Solutions and any person designated by Nuclear
Solutions, reasonable assistance required to perfect the rights defined in
this
Paragraph without further payment or compensation.
Unless
otherwise requested by Nuclear Solutions, upon the completion of the Services
to
be performed under this Agreement or upon the earlier termination of this
Agreement (other than upon default for non-payment by Nuclear Solutions that
is
not later cured either through written agreement of the parties hereto or
through satisfaction by Nuclear Solutions of a judgment against it to make
such
payments), Frisco shall immediately turn over to Nuclear Solutions all materials
and deliverables acquired or developed by Frisco pursuant to this
Agreement.
7. Confidential
Information.
Nuclear
Solutions and Frisco each acknowledge the sensitivity of the subject matter
of
this Agreement. Any specifications, drawings, sketches, models, samples, data,
computer programs (including all source code and object code) or documentation,
technical information, methods of operation, Nuclear Solutions client
information or other business information or confidential information of either
Nuclear Solutions or Frisco (the “Confidential Information”) and furnished or
disclosed by one party to the other hereunder shall be deemed the property
of
and, when in tangible form, shall be returned to the providing party upon
completion or termination of this Agreement. Unless such information was
previously known to the receiving party free of any obligation to keep it
confidential, or has been or is subsequently made public by the providing party
or a third party with a right to disclose such information, it shall be held
in
confidence by the receiving party, shall not be disclosed to any third party
by
the receiving party, shall be used only for the purposes hereunder, and may
be
used for other purposes only upon such terms and conditions as may be mutually
agreed upon in writing; provided,
however,
that
the receiving party may disclose the Confidential Information as may be required
by law, rule, regulation or court order or decree, or if the receiving party
reasonably determines (following advance notice to and opportunity to comment
by
the other party) that such disclosure is necessary in order to comply with
applicable law.
Both
parties acknowledge that disclosure of any Confidential Information by the
receiving party will give rise to irreparable injury to the providing party,
inadequately compensable in damages. Accordingly, the providing party may seek
and obtain injunctive relief against the breach or threatened breach of the
foregoing undertakings, in addition to any other legal remedies which may be
available. Both parties acknowledge and agree that the covenants contained
herein are necessary for the protection of legitimate business interests of
the
providing party and are reasonable in scope and content.
Notwithstanding
anything to the contrary, in the event that Frisco incorporates any of its
Confidential Information into the Services, Nuclear Solutions shall have the
right to use, disclose and sublicense such Confidential Information.
8. Warranty.
The
Services provided by Frisco shall be produced in a workmanlike manner and shall
be rendered by qualified personnel who will perform the tasks assigned
consistent with good professional practice and the state of the art involved.
Frisco warrants and represents that he has not and shall not grant any rights
to
any third parties inconsistent with the provisions of this
Agreement.
EXCEPT
FOR THE LIMITED WARRANTIES SET FORTH IN THIS SECTION 8, FRISCO MAKES NO
ADDITIONAL WARRANTIES.
9. Termination
and Cancellation.
Either
party may terminate this Agreement at anytime with or without cause or reason.
In the event of such termination by Nuclear Solutions, Frisco shall retain
all
Shares previously issued. In the event of such termination by Frisco, Frisco
shall retain such number of Shares as are pro-rated for such 12 month period
to
the date of termination. Frisco must assign all other Shares to Nuclear
Solutions within 10 days of termination.
10. Limitation
of Liability.
IN NO
EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT,
TORT
(INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT
SUCH
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. The parties have
agreed that the limitations specified in this Section 10 will survive and apply
even if any limited remedy specified in this Agreement is found to have failed
of its essential purpose.
11. Compliance
with Laws.
Frisco
shall comply with all applicable federal and state laws and regulations relating
in any way to its performance or compensation under this Agreement.
12. Applicable
Law.
This
Agreement shall be deemed to be a contract made under the laws of Nevada and
for
all purposes it, plus any related or supplemental documents and notices, shall
be construed in accordance with and governed by the laws of the Nevada exclusive
of its choice of law rules. Any dispute by either party arising out of or
relating to this Agreement shall be finally settled by binding arbitration
in
the District of Columbia or such other place as the parties may mutually agree,
under the Rules of the American Arbitration Association (the “AAA”), by one (1)
or more arbitrators reasonably familiar with the technology and business covered
by this Agreement, appointed by mutual agreement of the parties. If the parties
cannot agree upon an arbitrator, then each shall appoint one (1) arbitrator
and
the two (2) arbitrators shall select a third (3rd) arbitrator. If the
arbitrators selected by the parties cannot agree upon the choice of a third
(3rd) arbitrator within ten (10) days after their nomination, then the third
(3rd) arbitrator shall be appointed by the AAA. The arbitrators shall apply
Nevada law to the merits of any dispute or claim. No depositions or discovery
request shall be allowed and all parties may make one submission only before
a
hearing, if one is requested. The decision of the arbitrators shall be final
and
binding upon the parties, shall not be subject to appeal, and shall address
the
issues of costs of the arbitration and all matters relating to such arbitration.
Judgment on the award entered by the arbitrators may be entered in any court
having jurisdiction thereof and neither party shall ▇▇▇ the other party except
for enforcement of the arbitrator’s decision.
13. Assignment
and Delegation.
(a)
By Frisco:
Frisco
may not sell, transfer, assign or otherwise convey any of its rights or
obligations under this Agreement to any other person without the express prior
written consent of Nuclear Solutions. Any such assignment without such consent
shall be null and void.
(b)
By Nuclear Solutions:
Nuclear
Solutions may not sell, transfer, assign or otherwise convey any of its rights
or obligations under this Agreement to any other person without the express
prior written consent of Frisco. Any such assignment without such consent shall
be null and void.
14. Sub-Contractors.
Frisco
may engage or make use of subcontractors for the purpose of providing the
Services.
15. Notices.
All
notices to either party shall be in writing and shall be directed to the address
stated below (unless notice of an address change is given). Any notices or
other
communications so addressed shall be deemed duly served if delivered in person
or sent by certified mail or facsimile, confirmed by certified mail, return
receipt requested.
| If to Nuclear Solutions: | NUCLEAR SOLUTIONS INC. | ||
| ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ | |||
| #▇▇▇ | |||
| ▇▇▇▇▇▇▇▇▇▇, ▇▇: ▇▇▇▇▇▇▇ ▇▇▇▇▇ | |||
| If to Frisco: | |||
| ▇▇▇▇ ▇▇▇▇▇▇ | |||
| ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. | |||
| ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ |
16. No
Waiver.
No
failure on the part of either party to exercise, and no delay in exercising,
any
right or remedy hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any right or remedy hereunder preclude any other
or further exercise thereof or the exercise of any other right or remedy granted
hereby or by any related document or by law.
17.
Entire
Agreement.
This
Agreement, including any Schedules hereto and made a part hereof, constitutes
and expresses the entire agreement and understanding between the parties, on
the
subject matter herein. All previous discussions, promises, representations
and
understandings between the parties relative to this Agreement, if any, have
been
merged into this document.
18. Independent
Contractors.
The
relationship of the parties is that of independent contractors. Nothing in
the
Agreement shall be construed to mean that the parties are members of any
partnership, joint venture, association, syndicate or other entity or to confer
on either party any express, implied or apparent authority to incur any
obligation or liability on behalf of the other party.
19. Severability.
In the
event that any term or provision of this Agreement is determined to be unlawful
or unenforceable, such term or provision shall be deemed severed from this
Agreement and all remaining terms and provisions of this Agreement shall remain
in full force and effect.
20. Disclosure.
Both
parties acknowledge and agree that it may be necessary for one party to disclose
the fact of the Frisco’s retention, the duties performed and the compensation
paid, should there be proper inquiry from such a source as an authorized U.S.
or
state government agency or should either party believe it has a legal obligation
to disclose such information and each party hereby authorizes any such
disclosures.
21.
Amendments.
This
Agreement may not be and shall not be deemed or construed to have been modified,
amended, rescinded, canceled or waived in whole or in part, except by written
instrument signed by the parties hereto.
22. Force
Majeure.
Neither
party shall be liable to the other party for any delay in performance or
nonperformance of any provision of this Agreement resulting from state or
governmental action; riots, war, acts of terrorism, sabotage, strikes,
lock-outs, prolonged shortage of energy, fire, flood, hurricane, earthquakes,
lightning, and explosion, provided that each party shall promptly notify the
other party of the occurrence of such event and shall estimate the probable
delay resulting therefrom.
23. Headings.
The
headings in this Agreement are inserted for convenience and identification
only
and are not intended to describe, interpret, define, or limit the scope, extent,
or intent of this Agreement or any other provision hereof.
24. Authority
to Execute.
Each
party represents and warrants that it has the legal power and authority to
enter
into this Agreement and that it has not made and will not make any commitments
to the other inconsistent with such rights.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date
first above written.
| NUCLEAR SOLUTIONS, INC. | ▇▇▇▇ ▇▇▇▇▇▇ |
| By:_____________________ | ____________ |
| ▇▇▇▇ ▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ | |
| Title: CEO |