EXHIBIT 10.1
EXECUTIVE SERVICE AGREEMENT
THIS EXECUTIVE SERVICE AGREEMENT (the "Agreement") is deemed made, entered into
and effective this 30th day of April, 2008 (the "Effective Date").
Between: Xxxxxx Creek Energy Corp. is a Nevada Corporation, with its principle
business address at 0000 Xxxxxx Xxxxx Xxxxx 000, Xxxxxx Xxxxx. 00000
(the "Company").
And: Westhampton Ltd., is an Alberta Corporation, whose principal
office is 0000 Xxxxxxxx Xxxx XX, Xxxxxxx, XX, Xxxxxx X0X 0X0, through whom the
General Services will be provided.
("Westhampton").
And: Xxxxx Xxxxxxxx, of 0000 Xxxxxxxx Xxxx XX, Xxxxxxx, XX, Xxxxxx
X0X 0X0
(the "Executive").
WHEREAS:
A. The Company is a reporting company incorporated under the laws of the State
of Nevada, U.S.A., and has its common shares listed for trading on the NASDAQ
Over-The-Counter Bulletin Board;
B. The Company is involved in the principal business of acquiring, exploring and
developing various resource properties of merit and particularly those resource
properties which constitute oil and gas exploration and development prospects
(collectively, the "BUSINESS");
C. The Executive is a Professional Engineer and has extensive experience in and
specialized knowledge in providing consulting advise on exploration strategies,
management and operational service considerations to mining, oil and gas
exploration companies involved in the areas of Business carried out by the
Company and has to date provided professional consulting services to the Company
and acted in the capacity of its Director;
D. The Executive is currently an employee of Westhampton, providing professional
services in connection with the various exploration related operations of
Westhampton;
E. The Company desires to retain the Executive to be a Director, and furthermore
to act in the capacity of President and Chief Executive Officer of the Company,
and the Executive desires to accept such positions, in order to provide such
related services to the Company (collectively, the "GENERAL SERVICES");
F. Westhampton is willing to allow the Executive to provide to the Company the
General Services hereunder in accordance with the terms and conditions hereof.
G. Since the introduction of the Company to Westhampton and the Executive (in
combination called the "Parties"), the Parties hereby acknowledge and agree that
there have been various discussions, negotiations, understandings and agreements
between them relating to the terms and conditions of the General Services and,
correspondingly, it is their intention that the terms and conditions of this
agreement (the "AGREEMENT") will replace, in their entirety, all such prior
discussions, negotiations, understandings and agreements with respect to the
General Services;
H. The Parties hereto have agreed to enter into this Agreement which replaces,
in its entirety, all such prior discussions, negotiations, understandings and
agreements, and, furthermore, which necessarily clarifies their respective
duties and obligations with respect to the General Services to be provided
hereunder, all in accordance with the terms and conditions of this Agreement;
I. The Parties do not wish this Agreement to be an employment agreement and
intend to maintain an independent contractor relationship whereby Westhampton
will cause the Executive, as an employee of Westhampton, to provide the General
Services hereunder. Westhampton shall be entitled to cause the Executive or
other appropriate employees of Westhampton to allocate, in its discretion, the
amount of time appropriate to providing General Services to the Company and the
manner of the provision of any part of the General Services. Westhampton may
choose the location from which the Executive's General Services are rendered,
select the times during which such General Services are rendered, and the
optimal form of communication through which to deliver or provide such General
Services. Provided however, all decisions of Westhampton in rendering the
General Services must be made in good faith, in the best mutual interests of
Westhampton and the Company, and carried out in a manner that is generally
consistent with accepted industry standards for the provision of such General
Services.
J. This Agreement when duly signed and accepted by Westhampton and Executive;
will define the duties. responsibilities and obligations of Westhampton and the
Executive; set forth and provide the consideration, expense allowances and any
other consideration offered or provided to Xxxxxx hereunder; and as offered by
the Company to other independent contractors providing professional services and
consulting services to the Company.
NOW THEREFORE, in consideration of the recited ongoing relationship of the
Parties and the promises, covenants, assurances, agreements and financial
compensation provided by and between the Parties all of which is mutually
acknowledged as good and sufficient consideration, by and between the Parties
hereto, and the Company and the Executive hereby promise, covenant and agree as
follows:
1. REMUNERATION
1.1 The Company shall pay to Westhampton consideration, including a monthly
invoiced service fee payments (the "Fee") and an expense allowance, as
set out under Schedule "A" hereto (or such other rates or amounts as
may from time to time be agreed to by and between Westhampton and the
Company in writing and where so agreed, any changes or amendments
hereto will be incorporated into this Agreement by the appropriate
amendment to Schedule "A").
1.2 The terms and conditions for payment of monthly service fees, expense
allowances, reimbursement for the cost of providing the General
Services and other similar matters relating to financial consideration
payable to Westhampton hereunder are only binding on the Parties and
form part of this Agreement when reduced to writing, signed by the
Parties or their respective authorized signatories, and provided either
in the body of this Agreement or in the further terms and conditions
attached hereto under Schedule "A".
1.3 The compensation provided for herein will be inclusive of any
remuneration otherwise payable to the Executive may be for serving as a
director of the Company or any subsidiary of the Company at the request
of the Company during the currency of this Agreement.
2. EXPENSES
2.1 The Company shall reimburse Westhampton the full amount for all
expenses reasonably incurred by the Executive in the proper performance
of the General Services, where such expenses are pre-approved under
this Agreement, pre-approved in writing by the Company's Board of
Directors (the "Board") or the controller of the Company at any
specified rate or amount, or upon the Executive providing such receipts
or other evidence as the Company may reasonably require.
3. NOTICE OF TERMINATION AND TERMINATION OF THE AGREEMENT
3.1 Any Party can terminate this Agreement (herein called "Termination")
upon thirty (30) days written notice (herein called "Notice of Termina-
tion") to the other Parties.
3.2 In the event that the Company terminates this Agreement for any reason
without providing the required Notice of Termination, then the Company
shall pay Westhampton the amount of the Monthly Service Fee as provided
in Schedule "A" hereto.
3.3 Westhampton is required to provide Notice of Termination herein to the
Company and its failure to do so will entitle the Company to only pay
the Monthly Services Fee on a prorated basis up to the date of the
Termination by Westhampton without notice.
3.4 All expenses and other reimbursable cost payable to Westhampton
hereunder are payable to the date of effective Termination where Notice
of Termination is provided hereunder or to the date of actual
Termination where the no Notice of Termination is provided hereunder.
4. TERM OF AGREEMENT
4.1 Unless otherwise agreed to in writing by the Parties, this Agreement
will commence on the Effective Date and continue on a month to month
basis until Terminated (herein called the "Term"). The Term of this
Agreement will continue for as long as Xxxxx Xxxxxxxx remains the
President and Chief Executive Officer of the Company, unless the
Parties enter into a written agreement to extend, alter or amend it.
5. GENERAL SERVICES
5.1 During the continuance of this Agreement the Company hereby agrees to
appoint and to retain the Executive as a Director and as the President
and Chief Executive Officer of the Company, respectively. The Executive
hereby agrees to be subject to the direction and supervision of, and to
have such authority as is delegated to the Executive by, the Board of
Directors of the Company (the "Board"), consistent with such positions.
The Executive also agrees to accept such positions in order to carry
out the duties of a Director and to provide such related services,
associated with the positions of President and Chief Executive Officer,
as the Board may, from time to time, reasonably assign to the Executive
and as may be necessary for the ongoing maintenance and development of
the Company's various Business interests during the continuance of this
Agreement (herein collectively described as the "GENERAL SERVICES").
Westhampton hereby approves of the appointment of the Executive to
fulfill the General Services.
5.2 It being expressly acknowledged and agreed by the Parties that the
Executive will initially commit to and provide to the Company the
General Services on the basis set forth herein. In this regard it is
hereby acknowledged and agreed that the Executive, as President and
Chief Executive Officer, shall be entitled to communicate with and
shall rely upon the immediate advice, direction and instructions of the
Chairman of the Board, or upon the advice or instructions of such other
Director or officer of the Company as the Chairman may, from time to
time, designate as necessary, in order to initiate, coordinate and
implement the General Services as contemplated herein subject, at all
times, to the final direction and supervision of the Board.
5.3 Without in any manner limiting the generality of the General Services
to be provided as set forth in Section 5.1 and 5.2 herein and subject
to the provisions of letter "G" of the Recitals hereof, it is hereby
also acknowledged and agreed that Executive will, during the
continuance of this Agreement, devote a substantial amount of
professional and business effort, energy and enterprise, both as to the
time and commitment, to the General Services.
5.4 The Executive will perform the said General Services faithfully,
diligently, to the best of the Executive's capabilities with the
resources at its disposal and in the best interests of the Company,
taking into account the employment obligations of the Executive to
Westhampton.
5.5 Included in the general definition and meaning of General Services,
hereunder, are those duties, responsibilities and obligations that the
Executive has agreed to be bound by as a Director.
5.6 In any event the Executive will not engage in any activity which is in
a conflict of interests with its engagement under this Agreement or
contrary to the best interests of the Company or Westhampton. In that
regard, the Executive, Westhampton and the Company shall regularly
consult and make necessary and appropriate records available to one
another to assure them, and each of them, that no potential or actual
conflict of interest arises in the performance of the responsibilities
hereunder by the Executive.
6. CONFIDENTIALITY, NON-DISCLOSURE, NON-COMPETITION AND NON-CIRCUMVENTION
6.1 Subject to the provisions of Section 5.6 hereof to prevent conflicts of
interest, Xxxxxx and the Executive hereby covenant, promise and agree
that they will be provided with confidential, proprietary and valuable
information by the Company about its clients, properties, prospects and
financial circumstances from time to time during the currency of this
Agreement, in order to permit the Executive to properly, effectively
and efficiently carry out its tasks, duties and activities hereunder.
However, by providing such disclosure of Confidential Information to
the Executive, the Company relies on the Executive to hold such
information as confidential and only disclose the same to those
parties, whether directors, officers, employees, agents,
representatives or clients and contacts of the Executive "who need to
know", in order that the Executive can carry out the objects of this
Agreement as provided for herein and as communicated as between the
Company and the Executive during the currency of this Agreement. Due to
the nature of the relationship of the Executive to the Company no more
precise limitations can be placed on the Executive's use and disclosure
of Confidential Information received from the Company pursuant hereto
than as described herein.
6.2 The general nature of the Agreement between the Parties is that of
Westhampton and the Executive (in combination herein called the
"Independent Contractor") acting as an independent contractor and
consultant to the Company, whereby the Independent Contractor will act
on the Company's behalf in the promotion of the Company's interests and
by way of introductions, consulting to and advising of the Company on
matters related to the Business. With the broad mandate and scope of
this relationship the Company must rely on the fiduciary duty of good
faith that the Executive owes the Company as provide under this
Agreement and as a Director and Officer of the Company, when the
Company is making disclosure to the Independent Contractor of
Confidential Information about Business opportunities and competitive
advantages which the Company has cultivated and developed. All
Confidential Information is disclosed to the Executive is disclosed on
the strict condition that the Independent Contractor, will not now or
at any future time, use such Confidential Information received from the
Company hereunder in any manner inconsistent with the best interests of
the Company, except with the express written permission of the Company.
The result of these terms and conditions of disclosure of Confidential
Information to the Independent Contractor by the Company is that the
Independent Contractor will:
(a) Only disclose such Confidential Information on a "need to
know" basis, but it will be up to the Independent Contractor's
reasonable discretion in acting on behalf of and in the best
interests of the Company to determine what group or groups
"need to know" about such information pursuant to the nature
and scope of this Agreement;
(b) The disclosure of confidential information from the Company to
the Independent Contractor further to the intents and purposes
of this Agreement will prohibit the Independent Contractor
from directly or indirectly using the Confidential Information
in a manner that is in conflict with or contrary to the best
interests of the Company, except with the Company's written
consent;
(c) The Independent Contractor will not use Confidential
Information in a manner that in the view of the Company would
constitute a direct or indirect use for a purpose which is in
competition with the best interests of the Company or would be
a circumvention of the Company's right or interest in a
particular Business opportunity.
(d) The meaning of Confidential Information (herein called
"Confidential Information") will include any information
disclosed by the Company that is declared by the Company
either verbally or in writing, depending on the means of
communication of such Confidential Information by the Company
to the Independent Contractor.
(e) The restrictions on disclosure of Confidential Material do not
apply to any of the following circumstances:
(i) Information forming part of the public domain, which became
such through no disclosure or breach of this Agreement on the
Independent Contractor's behalf;
(ii) Information which the Independent Contractor can independently
prove was received from a Third Party, which was legally
entitled to disclose such information;
(iii) Information which the Independent Contractor is legally
obligated to disclose in compliance with any applicable law,
statute, regulation, order, ruling or directive of an
official, tribunal or agency which is binding on the
Executive, provided that the Independent Contractor must also
provide the Company with notice of such disclosure at or
before releasing or disclosing the Confidential Information to
such official, tribunal or agency so that the Company is
afforded an opportunity to file a written objection to such
disclosure with such official, tribunal or agency.
6.3 The Independent Contractor understands, acknowledges and agrees that
the covenants to keep the Confidential Information confidential and not
disclosed it to Third Parties, except in conformity with this
Agreement, is necessary to protect the proprietary interests of Company
in such Confidential Information and a breach of these covenants would
cause significant loss to the Company in regard to its competitive
advantage, market opportunities and financial investment associated
with protection of its Confidential Information.
6.4 The Independent Contractor further understand, acknowledge and agrees
that a breach of these covenants of confidentiality, non-disclosure,
non-competition and non-circumvention under this Section 6 (in
combination the "Covenants of Confidentiality, Non-Circumvention and
Non Disclosure"), will likely cause such irreparable harm to the
Company that damages alone would be an inadequate remedy and the
Independent Contractor consent and agree such equitable remedies
including injunctive relief against any further breach which are
reasonably justified in addition to any claim for damages based on a
breach of these Covenants of Confidentiality, Non-Circumvention and Non
Disclosure.
6.5 The Parties mutually acknowledge, confirm and agree that the Covenants
of Confidentiality, Non-Circumvention and Non-Disclosure will survive
Termination of this Agreement and will continue to bind the Independent
Contractor to protect the Company's interest in such Confidential
Information disclosed pursuant hereto.
7. CHANGE OF CONTROL.
7.1 Where a Change of Control occurs prior to the Termination of this
Agreement, then the Independent Contractor will be entitled at any time
within one (1) month of the occurrence of the Change of Control, to
terminate this Agreement by giving the other Party thirty (30) days
notice in writing of the Independent Contractor's intention to
terminate the Agreement. In the event that the Independent Contractor
Terminates the Agreement, then the Company or the legal successor to
the Company (where a Change of Control involves a merger, take-over,
acquisition or similar arrangement accompanying the Change of Control,
which actually or effectively results in the elimination of the Company
as a separate or subsisting legal entity whereby it is replacement by
the legal successor which will hereinafter be call the "Successor
Company"), will be obligated to pay a Termination bonus (the
"Termination Bonus") to the Independent Contractor equal to the Fee for
one (1) month together with all unpaid amounts due and owing to the
Independent Contractor by the Company at the time of such Termination.
7.2 Payment of the Termination Bonus to the Executive pursuant to
sub-section 7.1 will be made by the Company or the Successor Company
within thirty (30) days of the date that the notice of termination was
delivered by the terminating Party, and such Termination Bonus will
only be payable where:
(a) the Independent Contractor is not in breach of any of the terms and
conditions of this Agreement such that the Company or the Successor
Company, as the case may be, is legally entitled to terminate this
Agreement pursuant hereto;
(b) the Independent Contractor has previously executed this Agreement
and thereby provided it's joint and several consent and agreement in
writing that: such Termination Bonus together all other outstanding
monies duly owing to the Executive will, upon payment pursuant to this
sub-sections 7.2 and 7.3, will constitute a full and final payment and
consideration, in settlement of any and all outstanding claims or
potential claims, that the Independent Contractor has or may have
against the Company or the Successor Company, or their respective Board
of Directors, Officers, successors or other assigns, arising out of or
in relation to the Independent Contractor relationship to the Company
or the Successor Company under this Agreement;
(c) the Independent Contractor delivers a duly executed copy of such
signed release and waiver of claim as prepared by the Company or the
Successor Company pursuant to the settlement, satisfaction and accord
arrangements provided under (b) above.
7.3 Where the Change of Control triggers the obligation of the Company or
the Successor Company to pay the Termination Bonus pursuant to 7.1 and
7.2 herein, the Independent Contractor will have the right to exercise
any stock options granted under this Agreement or as may have been
granted to the Executive in his capacity as either and officer or
director of the Company, for a period of ninety (90) days from the date
of Termination (the "Post Termination Exercise Period"). Unless
prohibited by law or the constitution of the Company or the Successor
Company, where any of the Independent Contractor's Stock Options would
not have otherwise vested and thereby be exercisable by the Independent
Contractor before the expiry of the Post Termination Exercise Period,
the Company will elect to do either one of the following, (on the
advise of its corporate and securities attorney):
(a) extend the Post Termination Exercise Period; or,
(b) collapse the length of the stock option vesting period, so that the
Independent Contractor's total issued stock options in the Company
securities (if any) can be legally exercised by the Independent
Contractor within the Post Termination Exercise Period,
where the Independent Contractor so choses to exercise such of the
Company's stock options as are in their possession at the time of
Termination.
General Clauses
8. GOVERNING LAW, JURISDICTION AND CURRENCY
8.1 This Agreement shall be governed by and interpreted in accordance with
the laws of the State of Nevada, without giving effect to the
principles of conflicts of law thereof.
8.2 Unless otherwise mutually agreed to in writing by the Parties, any
action, proceeding or arbitration in regard to a dispute or direction
relating to the subject matter of this Agreement will be solely within
the jurisdiction of the appropriate court, tribunal or arbitrator of
competent jurisdiction within the State of Nevada.
8.3 Unless otherwise expressly provided for herein or agreed upon in
writing by the Parties, all references to money or money consideration
are deemed to be in United States Currency ("US$")
9. NOTICE
9.1 All notices to be given with respect to this Agreement, unless
otherwise provided for, shall be given to Xxxxxx, the Company and the
Executive at the respective addresses, fax numbers and email addresses
shown below or otherwise communicated by the Parties to each other for
such notice and service matters during the currency of this Agreement.
9.2 All notices, requests, demands or other communications made by a Party
will be deemed to have been duly delivered: (i) on the date of personal
delivery utilizing a process server, courier or other means of physical
delivery to the intended recipient ("Personal Service"); or (ii) on the
date of facsimile transmission (the "Fax") on proof of receipt of the
Fax; or (iii) on the date of electronic mail (the "email") with
verifiable proof of receipt of such email; or (iv) on the seventh (7th)
day after mailing by registered mail with postage prepaid ("Registered
Mail"), to the Party's address, Fax number, email address set out in
this Agreement or such other addresses Fax numbers or email address as
the Parties or their Representatives may have from time to time during
the currency of this Agreement or thereafter and communicated to the
other Parties for the purposes of this Agreement.
To: Xxxxxx Creek Energy Corp.
C/o Sierra Corporate Services
000 X. Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxx, XX 00000
Tel: (000) 000 0000
Fax: (000) 000 0000
Or
C/o Xxxxx X. Xxxxx, Attorney At Law
0000 X. Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Emaile:xxxxxx@xxxxxxxxx.xxx
To: Xxxxx Xxxxxxxx
C/o Xxxxx Xxxxxxxx,
Of 0000 Xxxxxxxx Xxxx XX,
Xxxxxxx, XX, Xxxxxx X0X 0X0
Tel: (000) 000 0000
xxxxxx@xxxxxxxxxxx.xx
To: Westhampton Ltd.
C/o Xxxxx Xxxxxxxx,
Of 0000 Xxxxxxxx Xxxx XX,
Xxxxxxx, XX, Xxxxxx X0X 0X0
Tel: (000) 000 0000
xxxxxx@xxxxxxxxxxx.xx
10. ENTIRE AGREEMENT
10.1 This Agreement constitutes the entire agreement between the Parties
with respect to the subject matter hereof and replaces, restates in
full and supersedes all other prior agreements and understandings, both
written and oral.
10 ASSIGNMENTS
10.1 The Parties agree that neither will assign this Agreement without prior
written consent of the other Party.
11. INUREMENT
11.1 This Agreement shall be binding upon and inure to the benefit of the
parties and their respective successors and authorized assigns. Any
attempt by either party to assign any rights, duties or obligations
that may arise under this Agreement without the prior written consent
of the other party shall be void.
12. ENTIRE AGREEMENT AND SEVERANCE
12.1 This document contains the entire agreement between the Parties with
respect to the subject matter hereof, and neither Party is relying on
any agreement, representation, warranty, or other understanding not
expressly stated herein. In the event that any provision of this
Agreement will be held to be invalid, illegal or unenforceable in any
circumstances, the remaining provisions will nevertheless remain in
full force and effect and will be construed as if the unenforceable
portion or portions were deleted.
13. TIME IF OF THE ESSENCE
13.1 Time is of the essence in this Contract. A waiver of the strict
performance requirements hereunder in on instance will not constitute a
waiver for any other instance where time for performance is specified
this Contract.
14 COUNTERPARTS AND EXECUTION ELECTRONICALLY
14.1 Where the Parties hereto or their authorized signatories have signed,
sealed and duly executed this Agreement effective the date above shown
whether as a whole document in original form or in several
counterparts; each such counterpart shall be considered as an original
and in combination comprises the formal execution hereof. The Parties
acknowledge and consent to the execution of this Agreement and all
related documents and notices pursuant hereto by electronically scanned
signatures or facsimile transmission, either of which will constitute
good and sufficient execution, service and notice for all intents and
purposes hereunder and will be deemed to be as effective as if an
originally "signed-in-hand" physical document was used instead.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.
IN WITNESS WHEREOF this Agreement is hereby signed, sealed and duly executed by
the Parties or their duly authorized signatories on the Effective Date first
above written.
The COMMON SEAL of Xxxxxx Creek Energy Corp.)
was affixed in the presence of )
)
) (C/S)
)
Authorized Signatory )
The COMMON SEAL of Westhampton Ltd. )
was affixed in the presence of: )
)
) (C/S)
)
Authorized Signatory )
SIGNED, SEALED and DELIVERED by )
Xxxxx Xxxxxxxx in the presence of: )
)
)
)
____________________________________________)
Signature of Witness )
)
) __________________________________
) Xxxxx Xxxxxxxx
)
____________________________________________)
Address of Witness )
)
)
)
)
____________________________________________
Name and Occupation of Witness )
Schedule A - ESA of Independent Contractor
FINANCIAL TERMS AND ARRANGEMENTS
1. Monthly Fees for General Services
The Company will pay to the Independent Contractor the amount of US$10,000.00 as
a monthly service fee (herein called the "Fee")
2. Other Matters
2.1 As further consideration for this Agreement, the Parties agree as follows:
(1) The Company will grant to Independent Contractor stock options
representing five hundred thousand (500,000) shares at one
dollar (US$1.00) per share.
