CONSULTING
AGREEMENT
THIS
CONSULTING AGREEMENT, dated July 18, 2006 (this “Agreement”),
between NOVASTAR RESOURCES, LTD., a Nevada corporation (“Company”)
and
AARON FOLEY, an individual (“Consultant”).
For
the purposes of this Agreement, either of the above shall be referred to
as a
“Party”
and
collectively as the “Parties”.
Company
desires to retain Consultant to perform the Services (as defined below) and
Consultant desires to perform the Services for Company, subject to the terms
and
conditions set forth below.
NOW,
THEREFORE, in consideration of the premises and mutual covenants hereinafter
contained, the parties hereto intending to be legally bound hereby agree
as
follows:
1. Appointment
of Consultant.
Company
hereby appoints Consultant and Consultant hereby agrees to render services
to
Company to assist Company with its
business strategy, management and corporate expansion goals.
2. Services.
Subject
to the terms of this Agreement, Consultant agrees to act as a consultant
on
behalf of Company and will render strategic and financial advisory services
(the
“Services”)
on a
non-exclusive basis as outlined below:
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Assist
Company in developing a business
strategy.
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·
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Assist
Company in developing an acquisition strategy and
structure.
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·
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Assist
Company in performing due
diligence.
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·
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Assist
Company in analyzing relevant financial and operating data.
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·
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Assist
Company in preparing a projection model, and other financial
models.
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Assist
Company in connection with investor relations.
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Other
services as mutually agreed to by Company and
Consultant.
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3. Term.
The
term (“Term”)
of
this Agreement shall commence on the date first written above and shall expire
twelve (12) months thereafter; provided,
however, that this Agreement may be extended for additional periods of one
(1)
year
with the
mutual consent of the parties hereto. Notwithstanding
the foregoing, this Agreement may be terminated by either party, with or
without
cause, at any time following upon sixty (60) days written notice to that
effect
to the other party.
4. Compensation.
(a) For
the
services rendered and performed by Consultant during the term of this Agreement,
Company shall, as soon as practicable after the date hereof: pay to Consultant
a
total of Thirty-Five
Thousand (35,000)
shares
of
Company’s Common Stock (the “Fee”).
These
shares will be restricted stock and Company’s transfer agent will be instructed
to imprint a standard restrictive legend that refers to transfer restrictions
under the Securities Act of 1933, as amended and to impose stop transfer
restrictions against the shares.
(b) Upon
termination of this Agreement for any reason, Consultant expressly understands
and agrees that Company’ sole obligation shall be to pay Consultant the
Fee.
(c) Reimbursement
of any reasonable travel expenses, if any, shall be made according to Company’
corporate policy. Consultant shall be reimbursed for other reasonable and
necessary expenses actually incurred or paid by Consultant during the term
or
any extension thereof in the performance of the Services within twenty (20)
business days of the submission and approval by Company of expense statements,
vouchers, or other supporting information reasonably acceptable to Company.
5. Termination.
Consultant’s engagement hereunder shall terminate at the end of the Term or any
extension thereof as set forth in Section
3
hereof
or sooner upon the occurrence of any of the following events:
(a) The
termination of Consultant hereunder by Company at its option, for any reason
or
no reason, to be exercised by sixty (60) days’ written notice from Company to
Consultant.
(b) The
incapacity or death of Consultant.
(c) Upon
delivery of written notice by Company to Consultant, if Consultant materially
breaches this Agreement; provided that the Company gives Consultant a
description of the material breach and at least twenty (20) days to cure
such
breach.
7. Independent
Contractor.
Consultant and Company hereby acknowledge that Consultant is an independent
contractor. Consultant shall not hold itself out as,
nor
shall it take any action from which others might infer that it is an agent
of or
a joint venture of Company. All taxes and other expenses are also responsibility
of Consultant.
8. Work
For Hire.
(a) The
parties acknowledge and agree that all rights, including without limitation
ownership, patent and copyright, in any software, materials, reports (including,
without limitation, report books, reference materials and other literature
relating to Company’ products or services or otherwise related to the Services),
memoranda, graphics, logos or other work product prepared by Consultant pursuant
to the terms of this Agreement, or otherwise for Company (hereinafter the
“Work
Product”)
vest
in Company. The parties expressly acknowledge that the Work Product was
specially ordered or commissioned by Company and further agree that it shall
be
considered a “Work Made for Hire” within the meaning of the copyright laws of
the United States and that Company is entitled, as sole author, to the copyright
and all other rights therein, throughout the world, including but not limited
to, the right to make such changes therein and such uses thereof, as it may
determine in its sole and absolute discretion. If, for any reason, the Work
Product is not considered a “work made for hire” under the copyright laws of the
United States as aforesaid, then Consultant hereby grants and assigns to
Company, its successors and assigns, all of Consultant’s right, title and
interest in the Work Product, including, but not limited to, the copyright
therein throughout the world (and any renewal, extension or reversion copyright
now or hereafter provided), and all other rights therein of any nature
whatsoever, whether now known or hereafter devised including, but not limited
to, the right to make changes therein, and such uses thereof, as Company
may
determine in its absolute discretion. Consultant also agrees to keep necessary
records, made alone or with others during the course of performing Services
pursuant to this Agreement, and agrees to furnish Company, upon request,
with
all such records.
(b) If
Company is unable, after reasonable effort, to secure Consultant’s signature on
any application for patent, copyright, trademark or other analogous registration
or other documents regarding any legal protection relating to a Work Product,
whether because of Consultant’s physical or mental incapacity or for any other
reason whatsoever, Consultant hereby irrevocably designates and appoints
Company
and its duly authorized officers and agents as Consultant’s agent and
attorney-in-fact, to act for and in Consultant’s behalf and stead to execute and
file any such application or applications or other documents and to do all
other
lawfully permitted acts to further the prosecution and issuance of patent,
copyright or trademark registrations or any other legal protection thereon
with
the same legal force and effect as if executed by Consultant.
9. Proprietary
Information
(a) For
purposes of this Agreement, “proprietary information” means information relating
to the business of Company or any affiliated or subsidiary entity and shall
include (but shall not be limited to) information encompassed in all Work
Product, specifications, drawings, graphics, logos, designs, computer programs,
source code, object code, models, methodologies, algorithms, user documentation,
plans, formulas, proposals, marketing and sale plans, financial information,
costs, pricing information, customer information, and all methods, concepts
or
ideas in or reasonably related to the business of Company or information
of
customers or clients of Company which Company is required to maintain as
confidential.
(b) Consultant
agrees to regard and preserve as confidential, all proprietary information,
whether or not it has such information in writing, other physical or magnetic
form or such information is contained in Consultant’s memory or the memory of
any of Consultant’s agents or employees. Consultant shall not, without written
authority from Company to do so, directly or indirectly, use for the benefit
or
purpose, nor disclose to any other person or entity, either during the term
of
Consultant’s engagement hereunder or thereafter, except as required by the
conditions of Consultant’s engagement hereunder, any proprietary
information.
(c) Consultant
shall not disclose any reports, recommendations, conclusions or other results
of
the Services or the existence or the subject matter of this contract without
the
prior written consent of Company. In Consultant’s performance hereunder,
Consultant shall comply with all legal obligations Consultant may now or
hereafter have regarding the information or other property of any other person,
firm or corporation.
(d) The
foregoing obligations of this Paragraph shall not apply to any part of the
information that (i) has been disclosed in publicly available sources of
information, (ii) is, through no fault of Consultant, hereafter disclosed
in
publicly available sources of information, (iii) can be demonstrated to Company’
satisfaction that it is now in the possession of Consultant without any
obligation of confidentiality, or (iv) has been or is hereafter lawfully
disclosed to Consultant by a third party, but only to the extent that the
use or
disclosure thereof has been or is rightfully authorized by that third
party.
10. Injunctive
Relief.
Consultant acknowledges that the injury to Company resulting from any violation
by Consultant of any of the covenants contained in this Agreement will be
of
such a character that Company cannot be adequately compensated by money damages,
and, accordingly, Company may, in addition to pursuing its other remedies,
obtain an injunction from any such violation; and no bond or other security
shall be required in connection with such injunction.
11. Entire
Agreement/Modification/Survival.
This
Agreement sets forth the entire understanding of the Parties relating to
the
subject matter hereof, and supersedes
and cancels any prior communications, understandings and agreements between
the
Parties. This Agreement is non-exclusive and cannot be modified or changed,
nor
can any of its provisions be waived, except by written agreement signed by
all
Parties. The
terms
and conditions of Paragraphs 7, 9, 10, 11 and 12 hereof shall survive the
termination of this Agreement or completion of the Services as the case may
be.
12. Assignment.
Consultant shall be the primary provider of the Services and Consultant shall
not assign this Agreement or delegate Consultant’s duties hereunder and shall
not subcontract any of the Services to be performed hereunder without the
prior
written consent of Company.
13. Governing
Law.
This
Agreement
shall be governed by the laws of the State of New York without reference
to the
conflict of law principles thereof. In the event of any dispute as to the
Terms
of this Consulting Agreement, the prevailing Party in any litigation shall
be
entitled to reasonable attorney's fees.
14. Notices.
Any
notice required or permitted hereunder shall be given in writing (unless
otherwise specified herein) and shall be deemed effectively given
upon personal delivery or seven business days after deposit in the United
States
Postal Service, by (a) advance copy by fax, (b) mailing by express courier
or
registered or certified mail with postage and fees prepaid, addressed
to
each
of the other Parties thereunto entitled at the addresses specified on the
signature page hereto, or at such other addresses as a Party may designate
by
ten days advance written notice to each of the other Parties at the addresses
above and to the attention of the persons that have signed below.
[signature
page follows]
IN
WITNESS WHEREOF, the parties hereto have duly executed this Consulting Agreement
with
full
authority
as of
the date first above written.
COMPANY:
NOVASTAR
RESOURCES, LTD.
/s/
Seth Grae
Seth
Grae
President
CONSULTANT:
/s/
Aaron Foley
Aaron
Foley