PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT
CALDERWOOD & HARKNESS LLP 825 Eighth Avenue, 42nd Floor New York, New York 10019, USA Telephone: (212) 558-4000 Facsimile: (212) 558-3588 www.calderwoodharkness.com
March 14, 2025
Rachel Hartley Engagement Lead Marlowe Asset Management Digital Forensics Inc. 1950 Old Gallows Road, Suite 300 Tysons, Virginia 22182, USA
Re: Retention of Marlowe Asset Management Digital Forensics Inc. for Forensic Data Collection, Processing, and Hosting Services — Calderwood & Harkness LLP Matter No. 1039-00005
Dear Ms. Hartley:
1. Purpose and Engagement Overview
Calderwood & Harkness LLP ("C&H" or the "Firm") writes to confirm the retention of Marlowe Asset Management Digital Forensics Inc. ("Marlowe Asset Management" or "VDF") to provide forensic data collection, processing, review hosting, production support, and related electronic discovery services in connection with the matter referenced above. This letter, when duly countersigned by an authorized representative of Marlowe Asset Management, shall constitute the binding agreement between C&H and Marlowe Asset Management with respect to the engagement described herein (this "Agreement").
Marlowe Asset Management is being retained at the direction of, and under the supervision of, counsel in connection with an internal investigation being conducted by C&H on behalf of its client, Torchlight Mining Corp. ("Torchlight" or "TMC"), a corporation organized under the Canada Business Corporations Act, R.S.C. 1985, c. C-44, with its principal office and headquarters located at 200 King Street West, Suite 3400, Toronto, Ontario M5H 3T4, Canada. Torchlight's common shares are listed on the Toronto Stock Exchange (ticker: TMC) and its American Depositary Receipts are listed on the New York Stock Exchange (ticker: TRCH).
The engagement concerns potential violations of the Foreign Corrupt Practices Act of 1977, as amended, 15 U.S.C. §§ 78dd-1 et seq. (the "FCPA"), involving Torchlight's West African mining operations in the Republic of Ganara, including but not limited to payments and transfers of value made to or for the benefit of officials of the Republic of Ganara in connection with the procurement, renewal, and expansion of mining concessions and related governmental permits and approvals.
The investigation has been initiated in connection with, and is related to, inquiries by the United States Department of Justice, Criminal Division, Fraud Section (the "DOJ") and the United States Securities and Exchange Commission, Division of Enforcement (the "SEC"), including the following:
(a) SEC Formal Order of Investigation, File No. HO-14892, dated January 22, 2025, authorizing the staff of the Division of Enforcement to investigate potential violations of Sections 13(b)(2)(A), 13(b)(2)(B), and 30A of the Securities Exchange Act of 1934, as amended; and
(b) DOJ voluntary document preservation request, dated February 14, 2025, directed to Torchlight Mining Corp. through undersigned counsel, requesting the preservation of all documents and electronically stored information relating to Torchlight's operations in the Republic of Ganara, including all payments to or through intermediaries, consultants, agents, and government officials.
The C&H engagement team for this matter consists of the following attorneys:
• Conrad Ashby — Responsible Partner, White Collar & Investigations Practice Group
• Victoria Chambers — Billing Partner
• Steven Hollander — Lead Associate
• Jasmine Thornton — Working Associate
Marlowe Asset Management's services are essential to the Firm's ability to render legal advice to Torchlight in connection with this investigation, and accordingly, the engagement is structured, as set forth more fully in Section 2 below, to preserve and protect the attorney-client privilege, the work product doctrine, and all other applicable protections.
2. Relationship of Parties — Agent of Counsel
2.1 Marlowe Asset Management is retained as a non-testifying consultant and agent of C&H for the sole purpose of assisting counsel in providing legal advice to Torchlight in connection with the investigation described in Section 1 above. All work performed by Marlowe Asset Management under this Agreement is performed at the direction of, and under the supervision of, C&H attorneys. Marlowe Asset Management is not being retained as an independent expert, and the parties do not anticipate that Marlowe Asset Management or any of its personnel will be called upon to provide testimony in any proceeding arising out of or related to this matter.
2.2 The engagement is specifically structured to preserve and protect the attorney-client privilege, the work product doctrine under Federal Rule of Civil Procedure 26(b)(3) and its state-law equivalents, and any other applicable evidentiary protection or immunity. Marlowe Asset Management acknowledges and agrees that it is acting as a functional extension of C&H's legal team for purposes of privilege analysis, and that the services it provides are necessary for C&H to render informed legal advice to Torchlight regarding the subject matter of the investigation.
2.3 C&H is the contracting party under this Agreement. Torchlight Mining Corp. is the ultimate client and beneficiary of the services rendered by Marlowe Asset Management, but Marlowe Asset Management's contractual relationship is exclusively with C&H. Marlowe Asset Management shall not accept direction from Torchlight personnel unless such direction is first authorized by C&H counsel. In no event shall Marlowe Asset Management be deemed to have an attorney-client or direct professional services relationship with Torchlight by virtue of this Agreement.
2.4 On day-to-day matters, Marlowe Asset Management shall take direction from Steven Hollander (Lead Associate) and Jasmine Thornton (Working Associate), who are authorized to provide instructions regarding data collection, processing specifications, search term applications, production formatting, and similar operational matters. Any matter that Marlowe Asset Management deems to involve a material change in scope, a significant cost increase, or a question of legal strategy shall be escalated to Conrad Ashby (Responsible Partner) through Steven Hollander.
2.5 Nothing in this Agreement shall be construed to create a partnership, joint venture, or employment relationship between C&H and Marlowe Asset Management. Marlowe Asset Management is an independent contractor and shall be solely responsible for the supervision, compensation, and benefits of its employees and subcontractors.
3. Scope of Services
3.1 Forensic Data Collection
Marlowe Asset Management shall perform forensic imaging and collection of electronically stored information ("ESI") from identified custodians and data sources as directed by C&H. All collection activities shall be conducted in accordance with industry-standard forensic methodologies and shall be designed to produce forensically defensible results suitable for use in regulatory proceedings before the DOJ and the SEC.
The total number of anticipated custodians is twenty-three (23), comprising the following categories:
(a) Current employees of Torchlight, TGH, and TGM: Twelve (12) individuals, as identified on the custodian list to be provided by C&H under separate cover (Exhibit B);
(b) Former employees: Four (4) individuals, including Marcus Delacroix (former Vice-President, Business Development — West Africa, Torchlight Ganara Holdings Ltd.) and Raymond Osei-Bonsu (former Country Manager, Torchlight Ganara Mining S.A.), as well as two additional former employees to be identified on the custodian list; and
(c) Shared and departmental mailboxes: Seven (7) shared or departmental email accounts, including but not limited to mailboxes associated with the Finance, Legal, Government Affairs, and Business Development functions, as identified on the custodian list.
Data sources subject to collection include, without limitation, the following:
(i) corporate email systems, including Cobalt Ridge Data Systems / Ashgrove Software tenant environments;
(ii) shared network drives, including mapped departmental drives and Aldermere Systems or Cobalt Ridge Systems repositories;
(iii) financial systems databases, including Aldermere Services Inc. data and related subsystems used by Torchlight and its subsidiaries for accounts payable, vendor management, and general ledger functions; and
(iv) personal devices (including laptops, mobile phones, and tablets) where company business was conducted, to the extent such devices are identified and made available for collection.
The geographic scope of forensic collections is anticipated to include the following locations:
• Toronto, Ontario, Canada — Torchlight Mining Corp. headquarters, including servers and devices located at the 200 King Street West offices;
• Road Town, Tortola, British Virgin Islands — Torchlight Ganara Holdings Ltd. registered office, including any local servers, devices, or cloud-hosted environments;
• Libreville, Republic of Ganara — Torchlight Ganara Mining S.A. offices, Boulevard du Commerce 14, Quartier Plateau, Libreville, including local servers, workstations, and mobile devices;
• Lyon, France — Residence of Marcus Delacroix, subject to his cooperation and consent, for collection from personal devices and accounts on which company business was conducted; and
• Other locations as may be identified during the course of the investigation and communicated to Marlowe Asset Management in writing by C&H.
All collections shall be forensically defensible and shall employ industry-standard imaging tools (including, without limitation, Penrose Technologies, Calderon Technologies, or Sundial Services Inc. for mobile devices, as appropriate). Marlowe Asset Management shall maintain complete chain-of-custody documentation for all collected media, including detailed logs of collection date, time, location, collecting technician, device or source description, serial numbers or unique identifiers, and hash values (MD5 and SHA-1, at minimum) for all forensic images.
3.2 Data Processing
Marlowe Asset Management shall process all collected ESI for loading into a document review platform designated by Marlowe Asset Management and approved by C&H. Processing shall include, without limitation, the following:
(a) De-duplication: Global de-duplication across all custodians and data sources based on MD5 hash values at the document level, with custodian-level tracking preserved for production purposes;
(b) De-NISTing: Removal of known system files and application files using the National Institute of Standards and Technology ("NIST") National Software Reference Library hash set;
(c) Metadata extraction: Extraction and preservation of all available metadata fields, including but not limited to date sent, date received, author, last modified date, file path, file name, file extension, and custodian;
(d) Text extraction and OCR: Extraction of embedded text from electronic documents, and application of optical character recognition ("OCR") technology to image-based files (including scanned PDFs, TIFF images, and similar formats) to enable full-text searching;
(e) Date range filtering: Application of a date range filter restricting processed data to the period from January 1, 2018 through the present date, consistent with the scope of the litigation hold notice issued on March 17, 2025, as may be adjusted by C&H in writing; and
(f) Search term culling: Application of keyword search terms, Boolean operators, proximity searches, and other culling methodologies as directed by C&H counsel in writing. Marlowe Asset Management shall generate hit reports for all applied search terms and provide such reports to C&H for evaluation.
With respect to language considerations, the parties acknowledge that the collected ESI is expected to include documents authored in English, French, and potentially local Ganaran languages (including Fang and Myene). Marlowe Asset Management shall coordinate with C&H regarding any specialized foreign-language processing needs, including the engagement of translation service providers, the application of foreign-language search terms, and the configuration of OCR engines for non-English character sets.
3.3 Hosting and Review Platform
Marlowe Asset Management shall host all processed data in a secure, cloud-based document review platform (currently anticipated to be Relativity, hosted on Marlowe Asset Management's Kestrel Technologies instance, or such other platform as C&H may approve in writing). The hosting environment shall meet the data security requirements set forth in Section 7 of this Agreement.
Marlowe Asset Management shall provide the following hosting and review support services:
(a) User access provisioning: Provisioning of individual user accounts for C&H review team members, with role-based access controls that restrict each user's access to designated workspaces and coding fields as directed by C&H;
(b) Review workflow support: Configuration and support for privilege review, relevance review, issue coding, and other coding workflows as specified by C&H, including the creation of custom coding panels, saved search configurations, and batch sets;
(c) Analytics capabilities: Deployment and support of analytics features including, without limitation:
(i) email threading and conversation threading;
(ii) near-duplicate identification based on configurable similarity thresholds;
(iii) concept clustering and categorization;
(iv) technology-assisted review ("TAR"), including continuous active learning ("CAL") workflows, if and when directed by C&H in writing; and
(v) communication analysis and visualization tools;
(d) Platform uptime: Maintenance of a minimum platform availability of 99.5% during business hours (8:00 a.m. to 10:00 p.m. Eastern Time, Monday through Saturday), with scheduled maintenance windows communicated to C&H at least 48 hours in advance; and
(e) Production format support: Configuration of the platform to support production in all formats required by the SEC and DOJ, including Bates-numbered TIFF images with extracted text files, native file productions, and load files in Concordance (.dat), Harborline Services Inc. (.lfp), and/or Relativity-compatible formats.
3.4 Production Support
Marlowe Asset Management shall prepare document productions in response to the SEC document subpoena served on Torchlight on February 3, 2025, and in response to any subsequent DOJ requests, grand jury subpoenas, or other compulsory process, as directed by C&H. Production support services shall include, without limitation:
(a) Preparation of Bates-numbered productions, with Bates numbering prefixes and numbering conventions as specified by C&H;
(b) Generation of load files containing all requisite metadata fields, including custodian, date fields, email header information, and production tracking fields;
(c) Production of native files where directed by C&H or required by the receiving agency;
(d) Redaction support, including the application of text and image redactions as directed by C&H in connection with privilege designations, personally identifiable information, or other bases for redaction;
(e) Support for rolling productions on a schedule directed by C&H, with Marlowe Asset Management capable of turning around production sets within five (5) business days of receiving final coding decisions from C&H, unless a different timeline is agreed upon; and
(f) Preparation of production logs, indices, and cover letters in a format specified by C&H, including itemization of the documents produced, the custodian source, and the Bates range for each production set.
3.5 Estimated Data Volumes
The parties acknowledge the following preliminary estimates of data volumes subject to collection and processing:
Marlowe Asset Management acknowledges that the foregoing are preliminary estimates based on information currently available to C&H and Torchlight. Actual data volumes may vary materially from these estimates based on, among other things, the results of custodian interviews, the identification of additional data sources, and the application of date range filters and de-duplication. Any material change in anticipated data volumes shall be communicated by Marlowe Asset Management to C&H promptly upon discovery.
Additional data sources may be identified as the investigation progresses, and the scope of Marlowe Asset Management's engagement may be expanded or modified accordingly. Any material change in scope shall be documented by a written amendment to this Agreement or, for changes that are minor or time-sensitive, by email confirmation from an authorized C&H attorney (Steven Hollander or Conrad Ashby) to Rachel Hartley, which email shall be deemed an amendment to this Agreement upon acknowledgment by Marlowe Asset Management.
4. Entities and Subsidiaries Covered
The following entities and subsidiaries are within the scope of Marlowe Asset Management's engagement. Marlowe Asset Management may be called upon to collect, process, host, or produce ESI originating from or relating to any of the following:
(a) Torchlight Mining Corp. — a corporation organized under the Canada Business Corporations Act, with its principal office at 200 King Street West, Suite 3400, Toronto, Ontario M5H 3T4, Canada;
(b) Torchlight Ganara Holdings Ltd. ("TGH") — a corporation organized under the laws of the British Virgin Islands, with its registered office at Wickhams Cay II, Suite 408, Road Town, Tortola, British Virgin Islands, serving as the intermediate holding company for Torchlight's Ganaran mining assets;
(c) Torchlight Ganara Mining S.A. ("TGM") — a Société Anonyme organized under the laws of the Republic of Ganara, with its principal office at Boulevard du Commerce 14, Quartier Plateau, Libreville, Republic of Ganara, serving as the primary operating entity for Torchlight's mining operations in Ganara; and
(d) Related intermediary entities and accounts as identified during the investigation, including but not limited to Crestfield Advisory Partners Ltd., a consulting firm incorporated in the Republic of Mauritius, which is believed to have served as an intermediary in certain transactions under investigation.
Marlowe Asset Management shall promptly notify C&H if, during the course of its work, it identifies data or documents relating to entities not listed above that may be relevant to the investigation.
5. Preservation and Chain of Custody
5.1 Marlowe Asset Management shall implement and maintain forensically defensible chain-of-custody protocols for all data collected, processed, hosted, or produced in connection with this engagement. These protocols shall be consistent with industry best practices and shall be designed to withstand scrutiny in regulatory proceedings before the DOJ, the SEC, and, if applicable, in federal court.
5.2 All original media (including hard drives, laptops, mobile devices, USB drives, and other storage media collected from custodians) and all forensic images created therefrom shall be stored securely in Marlowe Asset Management's controlled evidence storage facilities, with environmental controls appropriate for the media type, and shall be inventoried using Marlowe Asset Management's evidence management system. Each item of original media and each forensic image shall be assigned a unique evidence identification number.
5.3 Marlowe Asset Management shall implement write-blocking technology for all forensic imaging operations to prevent any modification or alteration of source media during the collection process. Hash-value verification (using MD5 and SHA-1 algorithms, at minimum) shall be performed at the time of imaging and verified upon ingest into Marlowe Asset Management's processing environment to confirm the integrity of all forensic images.
5.4 Marlowe Asset Management shall provide C&H with chain-of-custody documentation upon request and in connection with any regulatory production. Such documentation shall include, at minimum, evidence intake forms, transfer logs, storage location records, and hash-value verification reports. Marlowe Asset Management shall make its chain-of-custody records available for inspection by C&H or by authorized representatives of Torchlight upon reasonable notice.
5.5 Marlowe Asset Management acknowledges that the data subject to this engagement is also subject to a litigation hold notice issued by C&H on behalf of Torchlight, dated March 17, 2025, covering all documents and ESI from January 1, 2018 to the present date. Marlowe Asset Management shall coordinate its collection and preservation activities with the requirements of that litigation hold and shall take all steps necessary to ensure that no responsive data in its possession, custody, or control is altered, deleted, or destroyed during the pendency of this engagement.
6. Confidentiality and Privilege
6.1 Confidentiality Obligations
6.1.1 All information, data, documents, communications, work product, analyses, reports, and other materials received, accessed, created, or generated by Marlowe Asset Management in connection with this engagement (collectively, "Confidential Information") are strictly confidential. Confidential Information includes, without limitation, the existence and nature of the investigation, the identity of the client and the custodians, the substance of any communications between C&H and Marlowe Asset Management, and all ESI collected, processed, hosted, or produced by Marlowe Asset Management.
6.1.2 Marlowe Asset Management shall not disclose any Confidential Information to any third party without the prior written consent of C&H, except as may be required by applicable law, regulation, or order of a court of competent jurisdiction. In the event Marlowe Asset Management believes it is legally compelled to disclose Confidential Information, Marlowe Asset Management shall provide prompt written notice to C&H (and in no event later than forty-eight (48) hours after receiving notice of such compulsion) so that C&H may seek a protective order or other appropriate remedy. Marlowe Asset Management shall cooperate fully with C&H in any such effort and shall disclose only such Confidential Information as is strictly required by the applicable legal compulsion.
6.1.3 Marlowe Asset Management shall limit access to Confidential Information and to all project data to those Marlowe Asset Management personnel who have a direct need to know in connection with the performance of services under this Agreement. Marlowe Asset Management shall maintain a current log of all personnel assigned to the engagement, including their names, roles, dates of assignment, and the specific tasks they are authorized to perform, and shall make such log available to C&H upon request.
6.2 Privilege Protection
6.2.1 Marlowe Asset Management acknowledges and agrees that materials provided to Marlowe Asset Management by C&H, and materials generated by Marlowe Asset Management in the course of this engagement, are protected by the attorney-client privilege, the work product doctrine, and/or other applicable evidentiary privileges and protections. Marlowe Asset Management shall treat all such materials accordingly and shall take all reasonable steps to preserve the privileged and protected nature of such materials.
6.2.2 Marlowe Asset Management shall not produce, disclose, share, or otherwise make available any privileged or work product materials to any person or entity without the express prior written authorization of C&H. This prohibition applies to all forms of disclosure, including disclosure in response to informal requests, voluntary production, or compulsory legal process.
6.2.3 All communications between Marlowe Asset Management and C&H relating to this engagement, including emails, memoranda, reports, telephone calls, videoconferences, and in-person meetings, are intended to be and shall be treated as privileged communications made in furtherance of the rendition of legal services to Torchlight. Marlowe Asset Management shall mark all written communications and work product prepared in connection with this engagement with the legend "PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT" or such other legend as C&H may direct.
6.2.4 In the event that Marlowe Asset Management receives a subpoena, civil investigative demand, document request, or other form of legal process from any governmental authority, private litigant, or other third party seeking access to materials related to this engagement, Marlowe Asset Management shall immediately notify C&H (and in no event later than twenty-four (24) hours after receipt of such process) and shall cooperate fully with C&H's efforts to assert all applicable privileges and protections. Marlowe Asset Management shall not produce any responsive materials in response to such process without the express prior written consent of C&H.
6.3 Non-Waiver. The sharing of Confidential Information, privileged materials, and attorney work product with Marlowe Asset Management, as an agent and consultant retained by counsel for the purpose of assisting in the rendition of legal services, does not constitute a waiver of any applicable privilege, protection, or immunity, including the attorney-client privilege, the work product doctrine, the common interest privilege, or any other applicable privilege or protection under federal or state law. This non-waiver provision is intended to be consistent with and to invoke the protections of Federal Rule of Evidence 502(b) and any applicable state-law equivalent.
7. Data Security Requirements
7.1 Marlowe Asset Management shall implement and maintain information security controls that meet or exceed industry standards for the handling of sensitive legal data. At a minimum, Marlowe Asset Management's security posture shall include the following:
(a) Encryption: All engagement data shall be encrypted both at rest and in transit using Advanced Encryption Standard (AES) with a minimum key length of 256 bits. Data in transit shall be protected using TLS 1.2 or higher;
(b) Multi-factor authentication: All user access to the document review platform, Marlowe Asset Management's internal systems containing engagement data, and any cloud-based infrastructure shall require multi-factor authentication ("MFA");
(c) SOC 2 Type II compliance: Marlowe Asset Management represents that it has obtained, and shall maintain throughout the term of this engagement, a Service Organization Control (SOC) 2 Type II report issued by an independent auditing firm, covering the Trust Services Criteria of security, availability, processing integrity, confidentiality, and privacy. Marlowe Asset Management shall provide C&H with a copy of its most recent SOC 2 Type II report within ten (10) business days of execution of this Agreement, and shall provide updated reports annually thereafter;
(d) Role-based access controls: Access to engagement data shall be restricted through role-based access controls ("RBAC"), with access levels assigned based on job function and need-to-know. Administrative access to the hosting environment shall be limited to designated senior Marlowe Asset Management personnel; and
(e) Intrusion detection and monitoring: Marlowe Asset Management shall maintain intrusion detection and prevention systems, continuous security monitoring, and audit logging for all systems containing engagement data.
7.2 Marlowe Asset Management shall notify C&H in writing within twenty-four (24) hours of the discovery of any actual or suspected data breach, security incident, or unauthorized access to engagement data. Such notification shall include a preliminary description of the nature and scope of the incident, the data potentially affected, the remedial measures being taken, and the identity of any individuals whose data may have been compromised. Marlowe Asset Management shall cooperate fully with C&H and Torchlight in investigating and remediating any such incident.
7.3 All Marlowe Asset Management facilities used to store, process, or access engagement data, and all cloud infrastructure (including data centers and hosting environments) used in connection with this engagement, shall be located within the United States of America. Marlowe Asset Management shall not transfer, store, or process engagement data outside the United States without the prior written consent of C&H.
7.4 Marlowe Asset Management shall comply with all applicable data privacy and data protection laws in the performance of services under this Agreement, including as relevant to the cross-border transfer of personal data from Canada (pursuant to the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 ("PIPEDA") and applicable provincial legislation), the British Virgin Islands, and the Republic of Ganara. Marlowe Asset Management acknowledges that C&H may coordinate with local counsel regarding data protection requirements in relevant jurisdictions, including:
• Bartlett Keene & Ostrander LLP (Toronto, Canada) — Canadian data privacy counsel;
• Hargrove Whitfield LLP (Road Town, British Virgin Islands) — BVI counsel; and
• Ndong & Keïta Cabinet Juridique (Libreville, Republic of Ganara) — Ganaran legal counsel.
Marlowe Asset Management shall cooperate with such local counsel as directed by C&H and shall implement any additional data handling requirements that C&H communicates to Marlowe Asset Management in connection with local law compliance, including but not limited to data transfer agreements, standard contractual clauses, or other mechanisms required to lawfully transfer personal data across international borders.
8. Fee Structure and Billing
8.1 Rate Schedule
Marlowe Asset Management's fees for services rendered under this Agreement shall be calculated in accordance with the rate schedule attached hereto as Exhibit A (the "Rate Schedule"), which shall set forth the following categories of charges upon finalization:
(a) Forensic collection: Rates quoted on a per-custodian and per-device basis, differentiated by device type (e.g., desktop/laptop, mobile device, server, cloud-based mailbox);
(b) Data processing: Rates quoted on a per-gigabyte basis for ingestion, de-duplication, de-NISTing, metadata extraction, text extraction, and OCR;
(c) Hosting: Rates quoted on a per-gigabyte-per-month basis for data hosted on the document review platform;
(d) Production: Rates quoted on a per-document and/or per-page basis for the preparation of Bates-numbered productions, including image conversion, load file generation, and quality control;
(e) Project management: Hourly rates for Rachel Hartley (Engagement Lead) and other named project managers assigned to the engagement, including senior forensic analysts, junior analysts, and technical support personnel; and
(f) After-hours and weekend premium rates: Any applicable premium rates for forensic collection work, on-site support, or other services performed outside of standard business hours (Monday through Friday, 8:00 a.m. to 6:00 p.m. Eastern Time) or on weekends and federal holidays.
The Rate Schedule shall be finalized by mutual agreement of the parties within five (5) business days of the execution of this Agreement and shall be incorporated herein by reference upon attachment.
8.2 Invoicing. 8.2.1 Marlowe Asset Management shall submit itemized monthly invoices to C&H, addressed to Victoria Chambers (Billing Partner), referencing C&H Matter No. 1039-00005 on each invoice. Invoices shall be submitted by the fifteenth (15th) day of each calendar month for services rendered during the prior calendar month.
8.2.2 Each invoice shall include sufficient detail to enable C&H to evaluate the charges against the agreed Rate Schedule, including, at minimum:
(a) a description of services performed during the billing period;
(b) the volume of data collected, processed, hosted, and produced, expressed in the applicable unit of measure (e.g., gigabytes, custodians, pages);
(c) the applicable rate for each line item;
(d) project management hours and the applicable hourly rate for each individual;
(e) a summary of cumulative charges to date; and
(f) any applicable taxes, travel expenses, or out-of-pocket costs, itemized separately.
8.2.3 Payment terms shall be net thirty (30) days from C&H's receipt of a properly submitted invoice.
8.2.4 C&H reserves the right to dispute any charges in good faith within sixty (60) days of receipt of the applicable invoice. Any disputed charges shall be identified in writing, with a reasonable explanation of the basis for the dispute, and the parties shall endeavor to resolve such disputes promptly through good-faith negotiation. Undisputed amounts shall remain due and payable in accordance with the payment terms set forth above.
8.3 Estimated Fees
No specific fee cap or not-to-exceed amount is established by this Agreement. Marlowe Asset Management's fees will be based on actual data volumes and services rendered at the rates set forth in the agreed Rate Schedule.
Marlowe Asset Management shall provide C&H with a preliminary cost estimate within ten (10) business days of the execution of this Agreement. Such estimate shall be based on the estimated 1.625 terabytes of total data volume, twenty-three (23) custodians, and the scope of services described in Section 3 above, and shall include projected costs for each phase of the engagement (collection, processing, hosting (projected over a twelve-month period), and an initial production estimate).
Marlowe Asset Management shall notify C&H promptly, and in any event within five (5) business days, if projected costs for any phase of the engagement are expected to exceed the preliminary estimate by more than fifteen percent (15%). Such notification shall include an explanation of the factors contributing to the cost increase and, where applicable, recommendations for cost mitigation.
9. Staffing
9.1 Rachel Hartley shall serve as Marlowe Asset Management's Engagement Lead and primary point of contact for all matters arising under this Agreement. Ms. Hartley shall be responsible for the overall management, coordination, and quality assurance of Marlowe Asset Management's services, and shall serve as the primary liaison between Marlowe Asset Management and the C&H engagement team.
9.2 Prior to the commencement of any work under this Agreement, Marlowe Asset Management shall provide C&H with a complete list of all personnel assigned to the engagement, including each individual's name, title, role, and relevant qualifications. Marlowe Asset Management shall update this list promptly upon any change in staffing.
9.3 Marlowe Asset Management shall not substitute key personnel, including the Engagement Lead, without prior written notice to, and the consent of, C&H. For purposes of this Section, "key personnel" means Rachel Hartley and any other individual designated by C&H in writing as key to the engagement. C&H's consent to a substitution of key personnel shall not be unreasonably withheld, provided that Marlowe Asset Management proposes a replacement with qualifications and experience comparable to the individual being replaced.
9.4 All Marlowe Asset Management personnel assigned to the engagement, including employees, contractors, and subcontractors, shall execute individual confidentiality acknowledgments in the form attached hereto as Exhibit C prior to being granted access to any engagement data or Confidential Information. Marlowe Asset Management shall maintain copies of all executed confidentiality acknowledgments and shall make them available to C&H upon request.
10. Term and Termination
10.1 This engagement shall commence upon the execution of this Agreement by both parties and shall continue in effect until terminated in accordance with this Section 10 or until the services described herein have been completed and all obligations of the parties have been fulfilled.
10.2 Either party may terminate this Agreement upon thirty (30) days' prior written notice to the other party. C&H may terminate this Agreement immediately, without prior notice, in the event of a material breach by Marlowe Asset Management of any provision of this Agreement, including but not limited to a breach of Marlowe Asset Management's confidentiality, privilege, or data security obligations.
10.3 Upon termination or completion of this engagement, Marlowe Asset Management shall, at C&H's direction:
(a) return all original media, forensic images, processed data, work product, and Confidential Information in its possession, custody, or control to C&H or to such other party as C&H may designate, in a format and manner specified by C&H; or
(b) securely destroy all such materials in accordance with industry-standard data destruction methods (including, for electronic media, NIST SP 800-88 compliant sanitization), and provide C&H with a written certification of destruction specifying the materials destroyed, the method of destruction, and the date of destruction.
C&H shall communicate its direction regarding return or destruction within sixty (60) days of the effective date of termination. Pending receipt of C&H's direction, Marlowe Asset Management shall continue to store all engagement data securely in accordance with the requirements of this Agreement.
10.4 The obligations set forth in Section 6 (Confidentiality and Privilege), Section 7 (Data Security Requirements), Section 12 (Limitation of Liability and Indemnification), and Section 13 (Governing Law and Dispute Resolution) shall survive the termination or expiration of this Agreement indefinitely, regardless of the reason for termination.
10.5 In the event of termination, Marlowe Asset Management shall cooperate in good faith with C&H to facilitate an orderly transition of services to a successor vendor designated by C&H, including by providing data exports in industry-standard formats, transferring hosted data in a timely manner, and making Marlowe Asset Management personnel reasonably available to answer questions and provide technical assistance during the transition period, which shall not exceed sixty (60) days from the effective date of termination unless otherwise agreed by the parties.
11. Representations and Warranties
11.1 Marlowe Asset Management represents and warrants that, as of the date of this Agreement, it has no conflicts of interest with respect to any of the following persons or entities:
(a) Torchlight Mining Corp.;
(b) Torchlight Ganara Holdings Ltd. (TGH);
(c) Torchlight Ganara Mining S.A. (TGM);
(d) the United States Department of Justice;
(e) the United States Securities and Exchange Commission;
(f) Crestfield Advisory Partners Ltd.;
(g) Jean-Philippe Renard (identified by C&H as an individual of interest in the investigation); or
(h) any other party to, or subject of, the investigation that has been identified to Marlowe Asset Management by C&H as of the date hereof.
Marlowe Asset Management shall promptly notify C&H if, at any time during the term of this engagement, it becomes aware of any actual or potential conflict of interest.
11.2 Marlowe Asset Management represents and warrants that it maintains professional liability (errors and omissions) insurance coverage with limits of not less than Five Million Dollars ($5,000,000) per occurrence and Ten Million Dollars ($10,000,000) in the aggregate, and that such coverage will be maintained throughout the term of this engagement. Marlowe Asset Management shall provide C&H with a certificate of insurance upon request.
11.3 Marlowe Asset Management represents and warrants that it has the technical capacity, infrastructure, and experienced personnel necessary to perform the scope of services described in this Agreement, including forensic collection in international locations, processing of multi-lingual document sets, and hosting of data volumes in excess of two (2) terabytes.
11.4 Marlowe Asset Management warrants that all services performed under this Agreement shall be performed in compliance with all applicable federal, state, and local laws, regulations, and ordinances, and with all applicable international laws and regulations governing the performance of services in the jurisdictions in which Marlowe Asset Management operates in connection with this engagement.
12. Limitation of Liability and Indemnification
12.1 Limitation of Liability. Except with respect to claims arising from gross negligence, willful misconduct, or a breach of Marlowe Asset Management's confidentiality, privilege, or data security obligations under this Agreement, the aggregate liability of either party to the other under this Agreement shall not exceed the total fees paid or payable by C&H to Marlowe Asset Management under this Agreement during the twelve (12) month period preceding the event giving rise to the claim. In no event shall either party be liable to the other for any indirect, incidental, consequential, special, or punitive damages, including lost profits, loss of data, or loss of business opportunity, arising out of or in connection with this Agreement, regardless of the form of action and whether or not such damages were foreseeable. The limitations set forth in this Section 12.1 shall not apply to claims arising from gross negligence, willful misconduct, or a material breach of Section 6 (Confidentiality and Privilege) or Section 7 (Data Security Requirements) of this Agreement.
12.2 Indemnification by Marlowe Asset Management. Marlowe Asset Management shall defend, indemnify, and hold harmless C&H, its partners, associates, employees, and agents from and against any and all claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys' fees and costs of litigation) arising out of or resulting from: (a) Marlowe Asset Management's negligence or willful misconduct in the performance of services under this Agreement; (b) Marlowe Asset Management's breach of any representation, warranty, or obligation under this Agreement; or (c) any violation of applicable law by Marlowe Asset Management or its personnel in connection with this engagement.
12.3 Indemnification by C&H. C&H shall defend, indemnify, and hold harmless Marlowe Asset Management, its officers, directors, employees, and agents from and against any and all claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys' fees and costs of litigation) arising out of or resulting from: (a) C&H's provision of materially inaccurate information or instructions to Marlowe Asset Management, to the extent that Marlowe Asset Management reasonably relied upon such information or instructions in performing services under this Agreement; or (b) C&H's gross negligence or willful misconduct in connection with this engagement.
12.4 Notification and Cooperation. Each party shall promptly notify the other in writing of any claim for which indemnification is sought and shall cooperate fully with the indemnifying party in the defense of such claim. The indemnifying party shall have the right to control the defense of any such claim, subject to the indemnified party's right to participate in the defense at its own expense and to approve any settlement that would impose obligations on the indemnified party beyond the payment of money.
13. Governing Law and Dispute Resolution
13.1 Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to its conflict-of-laws principles.
13.2 Dispute Resolution. Any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity thereof, shall be resolved as follows:
(a) The parties shall first attempt to resolve the dispute through good-faith negotiation between senior representatives of each party for a period of not less than thirty (30) days following written notice of the dispute.
(b) If the dispute is not resolved through negotiation within the thirty (30) day period, either party may submit the dispute to binding arbitration administered by the American Arbitration Association ("AAA") in accordance with its Commercial Arbitration Rules. The arbitration shall take place in New York, New York, before a single arbitrator selected in accordance with the AAA rules. The arbitrator's award shall be final and binding and may be entered as a judgment in any court of competent jurisdiction.
(c) Notwithstanding the foregoing, either party may seek injunctive or other equitable relief in the state or federal courts located in New York, New York, to the extent necessary to protect its rights under this Agreement, including to prevent unauthorized disclosure of Confidential Information or privileged materials. Each party consents to the personal jurisdiction of, and waives any objection to venue in, such courts for purposes of any such proceeding.
14. Miscellaneous Provisions
14.1 Entire Agreement. This Agreement, together with its Exhibits, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations, and discussions, whether oral or written, between the parties relating to the subject matter of this Agreement.
14.2 Amendment. This Agreement may not be amended, modified, or supplemented except by a written instrument duly executed by authorized representatives of both parties. Notwithstanding the foregoing, minor scope adjustments may be documented by email in accordance with Section 3.5 of this Agreement.
14.3 No Assignment. Neither party may assign, transfer, or delegate any of its rights, obligations, or interests under this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld. Any purported assignment in violation of this Section shall be null and void.
14.4 Notices. All notices, requests, demands, and other communications required or permitted under this Agreement shall be in writing and shall be deemed duly given when delivered personally, sent by nationally recognized overnight courier, or sent by registered or certified mail, return receipt requested, postage prepaid, to the parties at the addresses set forth in the header of this letter:
If to C&H: Calderwood & Harkness LLP 825 Eighth Avenue, 42nd Floor New York, New York 10019
Attention: Conrad Ashby, Partner
If to Marlowe Asset Management: Marlowe Asset Management Digital Forensics Inc. 1950 Old Gallows Road, Suite 300 Tysons, Virginia 22182
Attention: Rachel Hartley, Engagement Lead
Either party may change its address for notices by providing written notice to the other party in accordance with this Section.
14.5 Counterparts and Electronic Signatures. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Signatures delivered by facsimile, portable document format (.pdf), or other electronic means shall be deemed original signatures for all purposes.
14.6 Severability. If any provision of this Agreement is held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, such provision shall be modified to the minimum extent necessary to make it valid and enforceable, and the remaining provisions of this Agreement shall continue in full force and effect.
14.7 Waiver. The failure of either party to enforce any provision of this Agreement shall not constitute a waiver of such party's right to enforce such provision or any other provision in the future.
14.8 Headings. The headings in this Agreement are for convenience of reference only and shall not affect the interpretation of this Agreement.
15. Exhibits and Attachments
The following Exhibits are incorporated into and form a part of this Agreement:
Exhibit A: Rate Schedule — to be attached upon finalization in accordance with Section 8.1.
Exhibit B: Custodian List — identifying the twenty-three (23) anticipated custodians, including custodian names, titles, entity affiliations, data source descriptions, and collection locations. To be provided under separate cover by C&H.
Exhibit C: Form of Individual Confidentiality Acknowledgment — to be executed by each Marlowe Asset Management employee, contractor, or subcontractor assigned to the engagement prior to being granted access to engagement data or Confidential Information.
We look forward to working with you and your team on this matter. Please indicate your agreement with the terms of this retention by countersigning this letter in the space provided below and returning an executed copy to the undersigned.
If you have any questions regarding this letter or the engagement, please do not hesitate to contact Steven Hollander at (212) 558-4127 or steven.hollander@calderwoodharkness.com.