EXHIBIT 10.4
THIS AGREEMENT is made and
shall be effective as of the 1st day of April, 2005
BETWEEN:
| |
Sky
Petroleum, Inc., a corporation incorporated in the State of Nevada, United States of
America, with an office in the City of Calgary, in the Province of Alberta, Canada
(“Sky” or the “Corporation”) |
–
and –
| |
Xxxxxx
X. Xxxxxxx, (“Xxxxxxx” or the “CEO”) on his own behalf, and on
behalf of a corporation to be formed under the name and style of Xxxxxx X. Xxxxxxx
Consulting Ltd., or such other name as may be approved by the Registrar of Companies,
as a body corporate duly incorporated pursuant to the laws of the province of Alberta,
with an office at the city of Calgary (the “Contractor”) |
WHEREAS the Corporation is
principally engaged in the acquisition, development, exploration and production of oil and
natural gas reserves, among other things;
AND WHEREAS the Corporation
wishes to engage the services and expertise of the Xxxxxx X. Xxxxxxx, an employee of
Xxxxxx X. Xxxxxxx Consulting Ltd. on the terms, conditions and for the considerations as
hereinafter set forth;
AND WHEREAS the Contractor
shall make available to the Corporation the services of Cameron to perform services for
the Corporation, and no other employee of the Contactor.
AND WHEREAS the Parties desire
to enter into this Agreement to set forth their respective rights and obligations;
NOW THEREFORE in consideration of
the premises and the mutual covenants herein contained, and in consideration of the
Contractor providing consulting services to the Corporation, the Corporation, the
Contractor and Cameron hereby covenant and agree as follows:
| 1.0 |
|
Contract
for Services |
| 1.01 |
|
Subject
to the terms and provisions of this Agreement, the Corporation hereby agrees to
contract for and engage the services of the Contractor, |
– 2 –
| |
and
the Contractor agrees to provide services of the CEO in accordance with and subject to the
provisions of this Agreement it being clearly provided that the services of the CEO are in
all respects dedicated and the CEO will not engage in activity that conflicts or
diminishes his ability to perform his obligations to the Corporation.. |
| 1.02 |
|
CEO's
services hereunder shall be provided on the following terms and conditions: |
| |
(a) |
|
CEO
shall diligently serve the Corporation and cooperate with the Corporation
and utilize maximum professional skill and care to ensure that all
services rendered hereunder are to the satisfaction of the Corporation,
acting reasonably; |
| |
(b) |
|
CEO’s
duties and responsibilities are enumerated in Appendix “B”. |
| 1.03 |
|
The Parties agree that the Contractor enters into this Agreement as an Independent
Contractor, and under no circumstances shall the Contractor or Cameron look to the
Corporation as an employer, partner, agent or principal. Contractor and Cameron
acknowledge that Cameron is not entitled to any benefits accorded to the
Corporation’s employees, including, without limitation, worker’s compensation,
disability insurance, vacation or sick pay. The Contractor and Cameron hereby agree to
indemnify and save the Corporation harmless from any and all circumstances where the CEO
is deemed to be an employee, including where the Corporation becomes liable for the
amounts of statutory deductions, or all other charges including deductible amounts payable
to taxing authorities, fees, interest or penalties, for example. |
| 1.04 |
|
Contractor shall pay, when and as due, any and all taxes, duties and other similar charges
assessed or incurred as a result of the CEO’s income for services rendered by the
CEO, including income taxes, and shall provide the Corporation with proof of said
payments, upon demand. Contractor will be responsible for all liabilities in respect of
all taxes relating to compensation under this Agreement, and will indemnify the
Corporation against all claims, costs, penalties, or demands made by any governmental
authority with respect to income taxes, UIC, CPP and GST, in relation to the compensation
payable under the this Agreement (“Statutory Deductions”). Cameron acknowledges
that he is at all times personally responsible to pay amounts due in respect of Statutory
Deductions, and that such amounts are subject to the indemnity provided in Section 1.03
herein. |
| 1.05 |
|
Contractor agrees to procure and cause Cameron to dedicate his time, attention and best
efforts to further the business and interests of the Corporation during the period of this
Agreement, exclusively from any employment activity during the term of this agreement
provided however, that the Contractor shall be at liberty to pursue other business
interests and investment opportunities, not in direct conflict or competition with the
business and interest of the Corporation. |
– 3 –
| 1.06 |
|
The parties agree that no oral agreement or provision of this Agreement shall be construed
so as to make the Contractor an agent, partner, or servant of Sky and the Contractor has
no authority to make any commitments or to take any action which may be binding upon Sky,
except for matters within the scope of duties set out in Schedule “B” hereto, or
as may be expressly authorized in writing by Sky |
| 2.0 |
|
Compensation
Arrangements |
| 2.01 |
|
The
compensation (the “Compensation”) provided to the Contractor by the Corporation
is as has been set forth in Appendix “A” attached hereto. The parties hereby
agree that the compensation arrangements will be the subject of review by the Corporation
eight months after the effective date of this agreement. |
| 3.0 |
|
Confidential
Information and Conflict of Interest |
| 3.01 |
|
Contractor hereby agrees and acknowledges that it and Cameron will have access to and will
be entrusted with confidential information concerning the affairs and business of the
Corporation, and agrees that the disclosure of such confidential information may be
detrimental to the Corporation and the shareholders thereof. Contractor acknowledges and
agrees that the right to maintain and preserve confidentiality constitutes a proprietary
right which the Corporation is entitled to protect. Accordingly the Contractor agrees to
execute a Confidentiality Agreement in the form attached hereto as Schedule “C”
at the time of executing this agreement, and agrees to renew, or revise such agreement
from time to time as required by Sky, acting reasonably. |
| 3.02 |
|
In the event of termination of this Agreement for any reason whatsoever, nothing in this
Agreement shall preclude Contractor or Cameron from pursuing a livelihood in the same
business or sector as that of the Corporation. |
| 4.01 |
|
This contract for services and all other rights, benefits, and privileges herein conferred
are personal to the Contractor and accordingly may not be assigned by the Contractor. |
| 5.0 |
|
Term
and Termination Provisions and Change of Control |
| 5.01 |
|
This Agreement shall continue in full force for an initial term (“Initial Term”)
commencing on the Effective Date and ending on July 31, 2006 unless terminated in
accordance with Section 5.02. |
| 5.02 |
|
This
Agreement shall be terminated upon the occurrence of any one of the following events: |
– 4 –
| |
(a) |
|
the
death or incapacity of Cameron; |
| |
(b) |
|
written
notice by the Corporation to terminate this Agreement without cause, prior
to the end of the contract period, upon payment by the Corporation of a
sum equal to one year total compensation as set forth in Appendix “A”; |
| |
(c) |
|
written
notice by the Corporation to terminate this Agreement with cause; |
| |
(d) |
|
ninety
(90) days written notice by the Contractor of its intention to terminate
this Agreement. |
| 5.03 |
|
In the event that the Agreement is terminated pursuant to Clause 5.02 (b), the Corporation
shall immediately pay to Contractor a termination amount equal to the sum of one year
compensation. |
| 5.04 |
|
In the event that the Agreement is terminated pursuant to Clause 5.02(d), the Contractor
shall be paid compensation until the last day that services were provided. |
| 5.05 |
|
In the event of a Change of Control, the Contractor shall have a period of ninety (90)
days within which to elect to continue to provide services as described herein. In the
event that, within that ninety (90) day period, the Contractor elects not to continue to
provide services to the Corporation, the Contractor shall deliver written notice of such
intention to the Corporation, and shall immediately following delivery of such notice,
receive a lump sum payment as determined in accordance with Article 5.02(b). For the
purposes of this Agreement, the term “Change of Control” means as follows: |
| |
(a) |
|
the
acquisition hereafter, directly or indirectly and by any means whatsoever,
in one transaction or a series of transactions, by any person or by a
group of persons acting jointly or in concert, of that number of voting
shares of the Corporation which is equal to or greater than Fifty Percent
(50%) of the total issued and outstanding voting shares of the Corporation
immediately after such acquisition, but excluding any issue or sale of
shares of the Corporation by way of prospectus or private placement; |
| |
(b) |
|
the
election at a meeting of the Corporation’s shareholders, as Directors
of the Corporation, of a number of persons, who were not included in the
slate for election as Directors proposed to the Corporation’s
shareholders by the Corporation’s prior Board of Directors, and who
would represent a majority of the Board of Directors, or the appointment
as Directors of the Corporation, of a number of persons which would
represent a majority of the Board of Directors, nominated by any holder of
voting shares of the Corporation or by any group of holders of voting
shares of the Corporation |
– 5 –
| |
acting
jointly or in concert and not approved by the Corporation’s prior Board of
Directors; |
| |
(c) |
|
the
completion of any transaction (including the sale, lease or other transfer
of assets of the Corporation) or the first of a series of transactions
which would have the same or similar effect or result as any transaction
or series of transactions referred to in subsection (a) and (b)
above; or |
| |
(d) |
|
a
determination by the Board of Directors of the Corporation that there has been
a change, whether by way of a change in the holding of the voting shares
of the Corporation, in the ownership of the Corporation’s assets or
by any other means, as a result of which any person or any group of
persons acting jointly or in concert is in a position to exercise
effective control of the Corporation. |
| 6.01 |
|
In consideration of the payment of termination compensation as provided herein and the
additional provisions of this Agreement, Contractor agrees to forever release and
discharge the Corporation from any and all obligations to pay any further amounts or
benefits to the Contractor with respect to the termination thereof, and upon payment
agrees to execute such documentation as may be required by the Corporation, acting
reasonably. |
| 7.01 |
|
Upon the expiration of the term set forth herein, this Agreement shall be terminated
unless both the Corporation and Contractor agree to renew this Agreement. Such a renewal
may be verbal but shall be confirmed in writing prior to the end of the then current term.
In the event of termination pursuant to this paragraph the parties shall have no further
obligations to each other except for the obligations set out in Clause 3.01, including
documents executed pursuant thereto which obligations will survive any termination of this
Agreement. |
| 7.02 |
|
The parties shall from time to time and at all times do such further acts and execute and
deliver all such further deeds and documents as shall be reasonably required in order to
fully perform the terms of this Agreement. |
| 7.03 |
|
The Corporation may elect to offer regular employment to Cameron during the term of this
Agreement or upon the expiration of the term set forth herein. Employment terms would be
negotiated between Cameron and the Corporation at that time. |
| 7.04 |
|
This Agreement shall be construed pursuant to the laws in effect in the Province of
Alberta and the parties hereto hereby attorn to the Courts of the Province of Alberta and
if applicable, the Courts of Canada. |
– 6 –
| 8.01 |
|
All notices required or allowed to be given under this Agreement shall be made either
personally or by mailing same by prepaid registered post, and any notice mailed as
aforesaid shall be deemed to have been received by the addressees thereof on the fifth
business day following the day of mailing: |
| |
To the Contractor: |
Xx. Xxxxxx X. Xxxxxxx
0000 0xx Xxxxxx XX
Xxxxxxx, XX X0X 0X0
|
| 8.02 |
|
Any
party may from time to time change its address for service hereunder on written notice to
the other party. |
[The Balance of this
Page has Intentionally Been Left Blank]
– 7 –
| 9.01 |
|
The parties hereto agree that this Agreement replaces and supersedes any previous
agreements, either verbal or written, and any such previous agreements are hereby
expressly terminated. |
IN WITNESS WHEREOF the parties
hereto have executed this Agreement effective as of the date and year first above written.
|
Per: ___________________________ |
___________________________
Xxxxxx X. Xxxxxxx |
|
|
Xxxxxx
X. Xxxxxxx Consulting Ltd., a corporation to be formed under that name and style or
such other name as may be approved by the Registrar of Companies, as a body corporate duly
incorporated pursuant to the laws of the province of Alberta, with an office at the city
of Calgary
Per: _________________________________ |
APPENDIX “A”
COMPENSATION ARRANGEMENT
| 1.01 |
|
Contractor
shall provide the services and duties and undertake the responsibilities as outlined
in Appendix "B". The fees will be $11,000 U.S. per month for the term of this
Agreement |
| 2.01 |
|
Contractor agrees to provide Cameron on a regular schedule of five days per week for the
duration of this Agreement. |
| 3.0 |
|
Benefits
and Perquisites |
| 3.01 |
|
Reasonable
parking expenses near the Corporation's offices. |
| 3.02 |
|
Reasonable
business expenses, including without limitation, business class air travel, to be
approved by the Corporation; |
| 3.03 |
|
Vehicle
expenses, when used for the benefit of the Corporation in carrying out Corporation
duties, to be at $0.45/km. |
| 3.04 |
|
Paid
vacation of six (6) weeks per year. |
| 3.05 |
|
Additional benefits as adopted by the Company that will be available to full time
employees that may cover such things as health care, insurance, etc. |
| 4.01 |
|
The Contractor shall be provided with Stock Options by the Corporation as set forth in the
Corporation’s Stock Option Plan subject to the terms and conditions set forth in such
Plan. |
APPENDIX “B”
Position and Reporting:
President and Chief Executive Officer reporting to the Board of Directors.
Duties and
Responsibilities of the Position:
Provide services that are generally
associated with the duties of a Chief Executive Officer including, without limitation:
| (a) |
at all times serving the best interests of the Corporation; |
| (b) |
developing appropriate strategies and business plans of the Corporation
(including principally business development, growth and marketing strategies and
plans) for consideration and approval of the Board of Directors of the
Corporation; |
| (c) |
managing the performance of the strategies and plans approved by the Board of
Directors of the Corporation from time to time; |
| (d) |
representing the Company to the public and the public markets, for the purposes
of seeking investor capital and in general; |
| (e) |
overseeing the discharge of their respective functions by the other senior
officers and executives of the Corporation; |
| (f) |
assuming overall responsibility for the management of the Corporation as a
whole; and |
| (g) |
reporting to the Board of Directors of the Corporation from time to time
regarding the performance and prospects of the Corporation. |
– 2 –
APPENDIX “C”
CONFIDENTIALITY
AGREEMENT
THIS CONFIDENTIALITY AGREEMENT
is entered into and shall be effective as of this 1st day of April, 2005
BETWEEN:
| |
Sky
Petroleum, Inc., a body corporate, duly incorporated pursuant to the laws of the State
of Nevada, one of the United States of America, with an office in the City of Calgary, in
the Province of Alberta, (hereafter the Disclosing Party”) |
– and –
| |
Xxxxxx
X. Xxxxxxx, on his own behalf, and on behalf of a corporation to be formed under the
name and style of Xxxxxx X. Xxxxxxx Consulting Ltd., or such other name as may be
approved by the Registrar of Companies, a body corporate duly incorporated pursuant to the
laws of the province of Alberta, with an office at the city of Calgary, (hereafter
collectively the “Receiving Party”) |
WHEREAS the Disclosing Party
is prepared to disclose certain information to the Receiving Party in order to enable the
Receiving Party in the position of Chief Executive Officer of Sky Petroleum, Inc. to
faithfully represent the commercial and business interest of the Disclosing Party (the
“Project”);
AND WHEREAS in the course of
such disclosure confidential, proprietary and commercially sensitive information of the
Disclosing Party will come into the possession of the Receiving Party;
NOW THEREFORE THIS AGREEMENT
WITNESSES that in consideration of the engagement of the Receiving Party by the
Disclosing Party, the covenants and agreements herein contained and other good and
valuable consideration, the Parties hereby agree as follows:
| 1. |
|
The
Receiving Party hereby acknowledges that all information, contracts and
contract terms, statistics, plans and prospects, specifications, presentations,
technical data, geology, geophysics, engineering, financing proposals and
plans, and |
– 3 –
| |
any
and all other material or information of any kind whatsoever furnished to it by or with
the concurrence of the Disclosing Party (hereinafter called the “Confidential
Information”) will be furnished to the Receiving Party in strictest confidence, and
the Receiving Party hereby covenants with the Disclosing Party that: |
| |
(a) |
|
it
shall keep the Confidential Information in strictest confidence and will not
disclose or reveal the same to any other person other than in accordance
with the provisions of this Agreement; |
| |
(b) |
|
it
shall not make any copies, duplicates, recordings or other reproductions of
the Confidential Information unless they are reasonably required by the
Receiving Party in relation to the Project and any such copies,
duplicates, recordings or reproductions shall be subject to the terms and
conditions of this Agreement; and |
| |
(c) |
|
it
shall not at any time use the Confidential Information for any purpose not
related to the Project. |
| 2. |
|
The
Receiving Party agrees that the Confidential Information shall be made
available only to those employees and advisors of the Disclosing Party who
are involved in the Project and who need access to the Confidential
Information in performing their responsibilities in respect of the
Project, and the Receiving Party shall cause such employees and advisors
to agree to observe the confidentiality obligations of the Receiving Party
as set forth in this Agreement. |
| 3. |
|
The
Receiving Party agrees that it shall take all reasonable steps as may be
necessary to protect and prevent the disclosure of the Confidential
Information to any unauthorized person by it or its employees or advisors. |
| 4. |
(a) |
|
Upon the conclusion or termination of the Receiving Parties’ obligations
in relation to the Project and at the request of the Disclosing Party, the
Receiving Party shall return to the Disclosing Party all Confidential
Information provided to it and any and all copies thereof and shall
destroy all extracts, reports, recordings, reproductions and notes
thereof. |
| |
(b) |
|
All
right, title and interest in and to the Confidential Information shall
remain the exclusive property of the Disclosing Party and no license for
or other rights of any kind whatsoever in or to the Confidential
Information or other type or form of intellectual or industrial property
derived there from is granted or can be implied to have been granted at
any time by the disclosure of the Confidential Information by the
Disclosing Party to a Receiving Party. |
| 5. |
|
Confidential
Information shall, for the purposes of this Agreement, not include: |
– 4 –
| |
(a) |
|
any
information which was rightfully in the possession of a Receiving Party
prior to the date of disclosure of such information to the Receiving Party
by the Disclosing Party; |
| |
(b) |
|
any
information which was in the public domain prior to the date of disclosure
of such information to the Receiving Party by the Disclosing Party; |
| |
(c) |
|
any
information which becomes part of the public domain by publication or
otherwise except by an unauthorized act or omission on the part of the
Receiving Party; |
| |
(d) |
|
any
information which is supplied to the Receiving Party by a third party who is
under no obligation to the Disclosing Party to maintain such information
in confidence; and |
| |
(e) |
|
any
information which is developed by a receiving party independently of the
disclosures made by the Disclosing Party under this Agreement. |
| 6. |
|
In
the event that the Receiving Party or any employees or advisors under the
Receiving Party’s control are required by a court or other legal
tribunal to disclose any of the Confidential Information, the Receiving
Party shall provide the Disclosing Party with prompt written notice of
such requirement so that the Disclosing Party may seek a protective order
or other appropriate remedy. In the absence of a protective order or other
appropriate remedy being sought or obtained by the Disclosing Party, the
Receiving Party may disclose only that portion of the Confidential
Information which their legal counsel advises them, in writing, that they
are legally required to disclose. Further, the Receiving Party shall
cooperate with the Disclosing Party in obtaining an appropriate protective
order or other reliable assurance that confidential treatment will be
given to the Confidential Information by such court or other legal
tribunal. |
| 7. |
(a) |
|
The Receiving Party acknowledges that the provisions contained herein are
reasonable in the circumstances and necessary for the adequate economic
protection of the Disclosing Party. The Receiving Party further
acknowledges that the breach by it of any of the provisions herein
contained would cause irreparable harm to the Disclosing Party which would
not be adequately compensated for by damages and, accordingly, in the
event of such breach, the Receiving Party acknowledges and agrees that the
Disclosing Party shall be entitled in its discretion to commence
proceedings for injunctive relief. |
| |
(b) |
|
The
provisions of this paragraph shall not be construed so as to derogate from
any other remedy which the Disclosing Party may have in the event of |
– 5 –
| |
such
breach whether at law, equity or pursuant to the terms of this Agreement. |
| 8. |
|
This
Agreement constitutes the entire agreement between the parties hereto as to the
subject matter of Confidential Information and merges all prior discussions
between the parties hereto, and neither of the parties hereto shall be bound by
any terms, conditions, representations or undertakings in relation to
Confidential Information other than as expressly set forth herein. |
| 9. |
|
This
Agreement shall enure to the benefit of and be binding upon the parties hereto
and their respective successors and permitted assigns, provided however that
the Receiving Party shall not be entitled to assign this Agreement or any of
its obligations hereunder to any other person(s) without the prior written
consent of the Disclosing Party. The Disclosing Party shall be entitled to
assign this Agreement or any of its obligations hereunder to any of its
subsidiaries or affiliates without the consent of the Receiving Party. Any
other assignment by the Disclosing Party shall require the prior written
consent of the Receiving Party. |
| 10. |
|
Notwithstanding
anything else in this Agreement, the provisions of this Agreement shall
continue to apply until the expiry of five (5) years from the date of the
termination of the Consulting Agreement entered into between the Parties. |
| 11. |
|
This
Agreement shall not be varied, altered or amended except by a document in
writing signed by all the parties hereto. |
| 12. |
|
This
Agreement shall be governed by and construed in accordance with the laws of the
Province of Alberta. |
| 13. |
|
If
any provision of this Agreement is determined to be invalid or unenforceable in
whole or in part, such validity or unenforceability shall attach only to such
provision and all other provisions hereof shall continue in full force and
effect. |
| 14. |
|
Notwithstanding
anything herein to the contrary, for the purposes of this Agreement,
Confidential Information shall also be deemed to include the existence of this
Agreement as well as the fact that the parties hereto have had or will have any
discussions relating to the Project. |
[The Balance of this page has intentionally been left blank]
– 6 –
| 15. |
|
The
Receiving Party agrees to indemnify and hold harmless the Disclosing Party and
its affiliates, subsidiaries, employees, directors and officers from and
against all claims, demands, damages, losses, costs, expenses, actions or other
liability of every kind and description whatsoever incurred by the Disclosing
Party or its affiliates, subsidiaries, employees, directors or officers
resulting from the disclosure or use of the Confidential Information by the
Receiving Party or any of its employees or advisors, other than in accordance
with the terms of this Agreement. |
IN WITNESS WHEREOF the parties
hereto have executed this Confidentiality Agreement as of the day and year first above
written.
| |
Sky Petroleum, Inc.,
Per: __________________________
Xxxxxx
X. Xxxxxxx Consulting Ltd., a corporation to be formed under that name and style or
such other name as may be approved by the Registrar of Companies, as a body corporate duly
incorporated pursuant to the laws of the province of Alberta, with an office at the city
of Calgary
Per: ___________________________
Xxxxxx X. Xxxxxxx
________________________________
|
