MASTER RESEARCH, DEVELOPMENT AND CONSULTING AGREEMENT
THIS AGREEMENT is made this 17th day of July, 2003 (the "Effective Date") by and
between Nuclear Solutions, Inc., a Nevada corporation ("Nuclear Solutions") and
Xxxxx Xxxxxxx, an individual ("Xxxxxxx").
BACKGROUND
X. Xxxxxxx has broad engineering and management expertise in the core
areas of focus of Nuclear Solutions.
B. Nuclear Solutions wishes to engage Xxxxxxx in various research,
development and consulting activities, as determined from time to time.
X. Xxxxxxx 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. Xxxxxxx shall provide a minimum of 40 hours per week of
research, development and consulting services to Nuclear Solutions 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. In consideration for the Services to be performed during the
first 12 months following the Effective Date, upon execution hereof Nuclear
Solutions shall immediately issue 3,000,000 shares of Nuclear Solutions common
stock to Xxxxxxx according to the following schedule:
1. 1,000,000 Shares within 30 days of the effective date of this contract.
2. 1,000,000 Shares within 30 days after September 17, 2003.
3. 1,000,000 Shares within 30 days after November 17, 2003.
In consideration for the Services to be performed during months 13 through
24 and 25 through 36 following the Effective Date, Nuclear Solutions shall issue
2,500,000 shares of Nuclear Solutions common stock to Xxxxxxx (collectively, the
"Initial Shares") on each of the first and second annual anniversaries of the
Effective Date.
3. Additional Consideration/Reimbursement. The following performance incentives
shall be awarded to Xxxxxxx upon the following triggering events:
(i) For each US Patent Application submitted by Xxxxxxx or the Company in the
name of Nuclear Solutions arising out of the Services, the Board of Directors of
Nuclear Solutions (the "Board") shall award Xxxxxxx, at its reasonable
discretion, 100,000 to 3,000,000 shares of Nuclear Solutions common stock. The
Board shall be required to consider the commercial value of the underlying
technology when determining the appropriate award.
(ii) For each valid proof of principal/concept demonstrated by Xxxxxxx to
Nuclear Solutions in response to a directive from the CEO that is not patentable
due to national security concerns, the Board shall award Xxxxxxx, at its
reasonable discretion, 1,000,000 to 25,000,000 shares of Nuclear Solutions
common stock. The Board shall be required to consider the commercial value of
the underlying technology when determining the appropriate award.
(iii) For each proof of principal/concept demonstrated by Xxxxxxx to
Nuclear Solutions in response to a directive from the CEO that is openly
patentable (i.e. not involving unpatentability due to national security
concerns), the Board shall award Xxxxxxx, at its reasonable discretion 500,000
to 5,000,000 shares of Nuclear Solutions common stock. The Board shall be
required to consider the commercial value of the underlying technology when
determining the appropriate award. (iv) For each Patent issued to Nuclear
Solutions based on technology developed by Xxxxxxx, the Board shall award
Xxxxxxx, at its reasonable discretion 1,000,000 to 20,000,000 shares of Nuclear
Solutions common stock. The Board shall be required to consider the commercial
value of the underlying technology when determining the appropriate award.
Each of the above issued additional shares shall be referred to as "Bonus
Shares" and together with the Initial Shares, the "Shares." Nuclear Solutions'
obligation to issue the Shares as set forth in this Section 3 shall survive any
termination of this Agreement.
4. Registration. The company will use reasonable efforts to register the shares
within 30 days following their issuance to Xxxxxxx
5. Term.
This Agreement shall commence on the Effective Date and shall continue for a
period of 36 months (the "Term"), or unless otherwise terminated in accordance
with the provisions set forth in Section 9.
6. Proprietary Rights; Disclosures of Intellectual Property.
(a) All work performed under this Agreement, and all Services, materials,
products and deliverables (the "Intellectual Property") developed or prepared
for Nuclear Solutions by Xxxxxxx under this Agreement, shall be 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 to the extent that (i)
the subject matter of the particular Service which gave rise to the Intellectual
Property was reduced to writing between Xxxxxxx and Nuclear Solutions; (ii) such
Intellectual Property was created during a specific Service performed by Xxxxxxx
for Nuclear Solutions and (iii) such Intellectual Property was not disclosed by
Xxxxxxx to Nuclear Solutions as a Preexisting Work (as defined below).
Intellectual Property meeting the above requirements shall be referred to as
"Newly Created Works." To the extent that title to any such Newly Created Works
may not, by operation of law, vest in Nuclear Solutions or such Newly Xxxx xxx
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 Newly Created Works 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.
Xxxxxxx 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.
In consideration of the payment by Nuclear Solutions to Xxxxxxx of the
amounts specified hereunder for the performance of work, Xxxxxxx agrees to
execute, acknowledge and deliver all such papers prepared by Nuclear Solutions
with the cooperation of Xxxxxxx as may be necessary to obtain patents for the
Newly Created Works in any and all countries of the world and to vest title
thereto in Nuclear Solutions, its successors and assigns, and provide, at
Nuclear Solutions' expense, all assistance reasonably required to assure Nuclear
Solutions the rights thereto.
Within 30 days of each request from the CEO to undertake a project
pursuant to this agreement, Xxxxxxx will provide to the CEO a list of patents,
materials, creative content, tools, inventions, specifications, methodologies,
discoveries, works of authorship, methods of operation, systems, processes
and/or designs, whether or not patentable, related to the proposed project and
which have previously been developed by Xxxxxxx (the "Preexisting Works). The
disclosure of such Preexisting Works shall be subject to the confidentiality
provisions of Section 7 herein. The Preexisting Works shall not be subject to
the work-for-hire doctrine described above; however a modification, enhancement
or derivative work thereof may be subject to the work-for-hire doctrine if
specifically agreed to in writing by Xxxxxxx and Nuclear Solutions. Nuclear
Solutions and Xxxxxxx may agree to an assignment or license of any Preexisting
Work in an agreement separate from this Agreement.
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), (i) Xxxxxxx shall immediately turn over to
Nuclear Solutions all materials and deliverables acquired or developed by
Xxxxxxx pursuant to this Agreement and which are related to the Newly Developed
Works and (ii) Nuclear Solutions shall immediately turn over to Xxxxxxx all
materials and deliverables provided by Xxxxxxx pursuant to this Agreement and
which are related to the Preexisting Works.
7. Confidential Information. Nuclear Solutions and Xxxxxxx 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 Xxxxxxx (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 discl osed 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 Xxxxxxx
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 Xxxxxxx 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. Xxxxxxx 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, XXXXXXX MAKES NO
WARRANTIES HEREUNDER, AND EXCEPT AS OTHERWISE SET FORTH IN THIS SECTION 8,
XXXXXXX EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING,
WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
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 or by Xxxxxxx, Xxxxxxx shall retain such number of Shares as
are pro-rated for such 12 month period to the date of termination. Xxxxxxx 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. Xxxxxxx shall comply with all applicable federal and
state laws and regulations relating in any way to its performance under this
Agreement.
12. Applicable Law. This Agreement shall be deemed to be a contract made under
the laws of the State of Delaware 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 State of Delaware exclusive of its choice of law
rules. The parties expressly agree that any and all disputes arising out of or
concerning this Agreement shall be litigated and adjudicated in the state and/or
federal courts located in the State of Delaware, and each party consents to and
submits to such jurisdiction.
13. Assignment and Delegation.
(a) By Xxxxxxx: Xxxxxxx 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 Xxxxxxx. Any such
assignment without such consent shall be null and void.
14. Sub-Contractors. Xxxxxxx 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.
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 Xxxxxxx'x 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. XXXXX XXXXXXX
By: Xxxxxxx Xxxxx Xxxxx Xxxxxxx
Name:
Title: CEO
Amended September 15, 2003
