CONSULTING SERVICES AGREEMENT
Exhibit
10.37
This
Consulting Services Agreement (“Agreement”) is made as of the 1st
day of March, 2007 to the 28th day of February, 2008, by and between Daybreak
Oil and Gas, Inc., (“Daybreak”), a Washington corporation, and Xxxxxxx X.
Xxxxxx, an individual.
Whereas,
Daybreak desires to be assured of the association and services of the Consultant
in order to avail itself of the Consultant’s experience, skills, abilities,
knowledge and background as an Accounting and Accounting Systems Analyst,
and
Whereas,
Daybreak wishes to engage Consultant to provide advisory and other services
for
Daybreak and Consultant wishes to accept such engagement, all on the terms
and
conditions set forth herein.
Whereas,
the Board of Directors of the Company considers it to be in the best interests
of the Company to enter into this Agreement with the Consultant and this
Agreement has been duly approved by the Board of Directors of the
Company;
Now
therefore, in consideration of the mutual promises herein and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Engagement. Daybreak
hereby engages the Consultant on a non-exclusive basis, and the Consultant
hereby accepts the engagement, to become a consultant to Daybreak and to render
such advice, consultation, information, and services to the directors and
officers of Daybreak regarding accounting system design, accounting input and
organization, management reports, internal control procedures and related
matters.
The
Consultant will report to the person or positions designated by the Company
to
whom the Consultant will be reporting and will discharge such duties and
responsibilities as are assigned to the Consultant from time to
time.
The
Consultant warrants that he is duly qualified to perform the duties hereunder
and further covenants that in performing his duties hereunder, he will not
engage in any activity that is in violation of applicable security laws or
subject the Corporation to liability thereunder.
It
shall
be expressly understood that the Consultant shall have no power to bind the
Company to any contract or obligation or to transact any business in the
Company’s name or on behalf of the Company in any manner.
2. Term. The
term of this Agreement shall commence on March 1, 2007 and continue in effect
until February 29, 2008. Notwithstanding the foregoing, this
Agreement may be terminated prior to the end of the term by either Daybreak
or
Consultant, for any reason or for no reason, upon thirty (30) days written
notice to the other party. In the event of termination, Consultant
shall be entitled to all fees and other consideration contained in this
Agreement earned and accrued to the effective date of termination.
3. Compensation.
(a) Monetary. In
exchange for his commitment to provide services to Daybreak under Section One
above, Daybreak agrees to pay Consultant an hourly rate in the amount of Forty
Dollars ($40.00) per hour plus out of pocket expenses incurred or advanced
on
behalf of the Company.
The
Consultant shall submit invoices to the Corporation for each month or portion
thereof for which services are provided during the period covered by the invoice
and also including any proper claim for travel expenses. Each invoice
shall indicate the period covered, the month or portion of a month worked,
the
rate and the total charge for consulting services.
The
Company agrees to pay the invoice within a reasonable period of time following
its examination and review by the Treasurer or Chief Financial
Officer.
The
Company will reimburse the Consultant, at actual cost, for out-of-pocket
expenses incurred in accordance with the Corporation’s standard practice for the
reimbursement of reasonable travel expenses incurred by its contractors or
its
own personnel. The Corporation will also reimburse the Consultant for
any reasonable long distance telephone, fax or photocopying charges incurred
by
the Consultant. Expenses claimed must be supported by the applicable
receipts.
4. Independent
Contractor Status. In the performance of the work
contemplated in this Agreement, Consultant is an independent contractor with
the
authority to control and direct the performance of the details of the work,
Daybreak being interested only in the results obtained. Consultant is
not an agent or employee of Daybreak for any purpose, and the employees of
Consultant are not entitled to any of the benefits that Daybreak provides for
its employees. Consultant shall be responsible for payment of all
taxes, including federal, state, and local taxes arising out of its activities
under this Agreement, including, but not limited to, income tax, social security
tax, and unemployment insurance tax that might be due. It is
understood that Daybreak does not agree to use Consultant
exclusively. Nothing in this Agreement shall constitute or be
construed as a creation of a partnership or joint venture between Consultant
and
Daybreak, or their successors or assigns. The parties acknowledge and
agree that Consultant, its principals, associates and employees, are not engaged
in the practice of law nor are they engaged in providing legal advice or counsel
in connection with their representation of Daybreak. The parties
further acknowledge and agree that any association or referral with or to any
law firm by or with Consultant shall not be considered or construed to be the
practice of law by Consultant in connection with such association or
referral.
5. Confidential
Information. In the course of providing services for
Daybreak, each of Daybreak and Consultant may learn or discover information
that
is identified by the other as non-public, proprietary
information. Each of Daybreak and Consultant agrees that, during the
term of engagement and for a period of twenty-four (24) months thereafter,
it
will not, directly or indirectly, disclose or use any such information of the
other party (“Confidential Information”) without the consent of such
party. Confidential Information shall not include: information
which is currently in the public domain or hereafter enters the public domain
without the fault or
involvement
of the receiving party; information known to the receiving party prior to its
disclosure by other party and information disclosed to a receiving party from
a
source (other than the other party) having a lawful right to make such
disclosure to the receiving party, or information required to be disclosed
under
any court order or governmental directive. The terms of this Agreement shall
be
treated as Confidential Information by both parties.
6. Summons/Subpoenas. In
the event that Consultant or any party acting on behalf of Consultant
(Consultant and any such person being a “Subpoenaed Party”) receives a subpoena
or summons requesting that the Subpoenaed Party produce documents or records
containing Confidential Information of Daybreak or otherwise pertaining to
the
services rendered hereunder or testify concerning such Confidential Information
of Daybreak or services, the Subpoenaed Party will immediately notify
Daybreak. Daybreak may, within the time permitted for the Subpoenaed
Party to respond to any such requests, initiate such legal action seeking a
protective order or other relief as Daybreak deems appropriate to protect
information from disclosure. If Daybreak takes no action within the
time permitted for the Subpoenaed Party to respond or if Daybreak’s actions do
not result in a judicial order preventing the Subpoenaed Party from supplying
or
disclosing the requested information or testifying, the Subpoenaed Party may
comply with the request. Daybreak agrees to reimburse and pay the
Subpoenaed Party for all costs and expenses incurred by the Subpoenaed Party
(or
such person) in connection with any such summons or subpoenas concerning
Daybreak, including reasonable attorney’s fees and time spent by the Subpoenaed
Party ‘s personnel, billed at their regular rates.
7. Indemnification. Each
party agrees to indemnify and hold the other party, its officers and employees,
harmless against any and all claims, lawsuits, judgments, costs, liens, losses,
expenses, fees (including reasonable attorney’s fees and costs of defense),
proceedings, actions, demands, causes of action, liability and suits of any
kind
and nature, including but not limited to, personal injury (including death),
property damage, or other harm for which recovery damages is sought that may
arise out of or be occasioned or caused by each party’s negligent act, error or
omission or the negligent act, error or omission of any agent, officer,
director, representative, employee, consultant or subconsultant of each party
and their respective officers, agents, employees, directors and representatives
while in the exercise of performance of the rights or duties under this
Agreement.
8. General.
(a) This
Agreement shall be interpreted and construed in accordance with the laws of
the
State of Washington without giving effect to principles of conflict of
law. Any action arising in connection with this Agreement must be
brought in Spokane County Superior Court, Spokane, Washington. By
this Agreement, the parties confer jurisdiction over the subject matter of
and
parties to this Agreement. The party who prevails in any such action
will be entitled to an award of the reasonable costs and attorneys’ fees
incurred in the action.
(b) The
terms and conditions set forth in this Agreement are intended by Daybreak and
Consultant to constitute the final and complete statement of their agreement,
and all prior proposals, communications, negotiations, understandings, and
representations relating to the subject matter of this Agreement, whether verbal
or written, are hereby superseded. No modification or amendment of
this Agreement shall be effected unless the same is in writing and signed by
both parties.
(c) Any
notice required or desired to be given under this Agreement shall be given
in
writing and sent by certified mail, return receipt requested, addressed as
follows:
i. To
Daybreak:
Daybreak
Oil and Gas, Inc.
Xxxxxx
X.
Xxxxxxxxx
1012
Washington Mutual Financial Center
000
Xxxx
Xxxx Xxxxxx
Xxxxxxx,
Xxxxxxxxxx 00000
ii. To
Xxxxxxx X. Xxxxxx:
Xxxxxxx
X. Xxxxxx
000
X.
Xxxx Xxxxxx Xxxxx 0000
Xxxxxxx,
XX 00000
Notice
shall be effective upon receipt.
(d) Consultant
consents in advance to Daybreak’s right to assign this Agreement to any
successor in interest that expressly assumes Daybreak’s obligations hereunder in
writing. Consultant may not assign its rights and obligations under
this Agreement.
(e) Each
of the
sections contained herein shall be and remain separate from, independent of,
and
severable from all and any other sections herein except as otherwise indicated
by the context of this Agreement. Any decision or declaration that
one or more of the sections or subsections are null and void shall have no
effect on the remaining sections or subsections of this Agreement.
(f) Upon
any
termination of employment, Consultant shall within ten (10) business days,
deliver or cause to be delivered to the Company all books, documents, effects,
monies received in trust, or other property belonging to the Company or its
subsidiaries for which the Company or its subsidiaries are liable to others,
which are in possession, charge, control, or custody of the
Consultant.
(g) This
Agreement shall inure to the benefit of and be binding upon the Consultant
and
its heirs, executors, legal personal representatives, and administrators, and
upon the Company.
(h) This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original and together shall constitute a single
agreement. Facsimile signatures shall be good and sufficient evidence
of signature for all purposes of this Agreement.
(i) The
waiver by
any party hereto of a breach of any provision of this Agreement shall
not
operate or be construed as a waiver of any subsequent breach of the same or
of
any other provisions of this Agreement
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the 28th day
of
February, 2007.
COMPANY:
Daybreak
Oil and Gas, Inc.
By:
/s/ Xxxxxx X.
Xxxxxxxxx
Xxxxxx
X. Xxxxxxxxx, Treasurer
CONSULTANT:
Xxxxxxx
X. Xxxxxx
By:
/s/ Xxxxxxx X.
Xxxxxx
Xxxxxxx
X. Xxxxxx
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