Exhibit 10.1
DEVELOPMENT SERVICES AGREEMENT
THIS DEVELOPMENT SERVICES AGREEMENT is made and dated for reference as
effective on this 1st day of March, 2001 (the "Effective Date").
BETWEEN:
--------
OLYMPIC RESOURCES LTD. a company duly incorporated and having a business
office and an address for notice and delivery located at 000 Xxxx Xxxxxxxx
Xxxxxx, Xxxxxxxxx, XX
(hereinafter referred to as the "Company");
OF THE FIRST PART
-----------------
AND:
----
XXXXX XXXXXXX, doing business as DWP Consultants, a proprietorship having
an address for notice and delivery located at 0000 Xxxxx Xxxx, Xxxx
Xxxxxxxxx, X.X., X0X 0X0 (hereinafter referred to as the "Consultant");
OF THE SECOND PART
------------------
(the Company and the Consultant being hereinafter singularly also referred
to as a "Party" and collectively referred to as the "Parties" as the
context so requires).
WHEREAS:
--------
A. The Company is a reporting company listed on the CDNX;
B. The Consultant is a proprietorship owned and controlled by Xx. Xxxxx Xxxxxxx
("Xx. Xxxxxxx"), the current President and Chief Executive Officer and a
Director of the Company, who has, together with the Consultant, expertise in the
development and financing of both junior oil and gas and non-reporting and
reporting companies;
C. Xx. Xxxxxxx, as President of the Company has been the driving force and the
visionary who has lead the Company to develop a substantial and rapidly growing
hydrocarbon asset base and revenue production stream (the asset base and
production and the Company's development thereto are collectively, the
"Business"), managed the raising of the Company's financing and the Consultant,
through Xx. Xxxxxxx, is continuing managing the Company's Business and is the
premier driving force in the Company's development and is anticipated to remain
such for the foreseeable future;
D. The Company is hereby desirous of formally retaining the Consultant, and
through the Consultant Xx. Xxxxxxx, in order to ensure that the Company can rely
upon the skills required continuing to be available to the Company, and the
Consultant is hereby desirous of accepting such position in order to provide
such development and financial services as may be necessary and determined by
the Company, from to time and in its sole and absolute discretion, to develop
and finance the development of the Business during the term of this agreement
(the "Agreement");
NOW THEREFORE THIS AGREEMENT WITNESSETH that, in consideration of the
mutual covenants and provisos herein contained, THE PARTIES HERETO AGREE AS
FOLLOWS:
Article 1
DEFINITIONS AND INTERPRETATION
------------------------------
1.1 Definitions. For all purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires, the following words
and phrases shall have the following meanings:
(a) "Agreement" means this Development Services Agreement as from time to
time supplemented or amended by one or more agreements entered into
pursuant to the applicable provisions hereof;
(b) "Arbitration Act" means the Commercial Arbitration Act (British
Columbia), R.S.B.C. 1996, as amended;
(c) "Board of Directors" means the Board of Directors of the Company as
duly constituted from time to time;
(d) "business day" means any day during which Canadian Chartered Banks are
open for business in the City of Vancouver, Province of British
Columbia;
(e) "Effective Date" has the meaning ascribed to it on the front page of
this Agreement;
(f) "Fee" has the meaning ascribed to it in section "4.1" hereinbelow;
(g) "General Services" has the meaning ascribed to it in section "2.1"
hereinbelow;
(h) "Indemnified Party" has the meaning ascribed to it in section "6.1"
hereinbelow;
(i) "Parties" or "Party" means the Company and/or the Consultant hereto,
as the context so requires, together with their respective successors
and permitted assigns as the context so requires;
(j) "subsidiary" means any company or companies of which more than 50% of
the outstanding shares carrying votes at all times (provided that the
ownership of such shares confers the right at all times to elect at
least a majority of the directors of such company or companies) are
for the time being owned by or held for that company and/or any other
company in like relation to that company and includes any company in
like relation to the subsidiary;
(k) "Business" has the meaning ascribed to it in recital "C" hereinabove;
2
1.2 Interpretation. For the purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any
particular Article, section or other subdivision of this Agreement;
(b) the headings are for convenience only and do not form a part of this
Agreement nor are they intended to interpret, define or limit the
scope or extent of this or any provision of this Agreement;
(c) any reference to an entity shall include and shall be deemed to be a
reference to any entity that is a permitted successor to such entity;
and
(d) words in the singular include the plural and words in the masculine
gender include the feminine and neuter genders, and vice versa.
Article 2
SERVICES AND DUTIES OF THE CONSULTANT
-------------------------------------
2.1 General Services. During the Term (as hereinafter defined) of this Agreement
the Company hereby agrees to retain the Consultant, and through the Consultant
Xx. Xxxxxxx, and the Consultant hereby agrees to accept such retainer in order
to provide such development and financing services as may be necessary, as
determined by the Company, to develop and finance the Business during the Term
and during the continuance of this Agreement (collectively, the "General
Services"). It is expressly acknowledged and agreed by the Parties hereto that
the Consultant, and through the Consultant Xx. Xxxxxxx, shall commit and provide
to the Company the General Services not on an exclusive basis but on a priority
in accordance with the needs of the Company.
2.2 Specific Services. Without in any manner limiting the generality of the
General Services to be provided by the Consultant, it is hereby agreed that the
Consultant will provide the following specific development and financing
services to the Company, or to any of the Company's subsidiaries:
(a) leadership in the identification of projects that fall within the
ambit of the Company's mission statement and which may enhance
shareholder value for the Company;
(b) leadership in the liaison with the media and all financial
institutions with a view to enhancing and promoting the image of the
Company;
(c) leadership in the development of all aspects of any program in
connection with the development and the financing of the development
of the Business;
3
(d) leadership in the creation, development, coordination and
administration of any and all development and financing programs in
respect of the Business and each of their proposed or potential
commercial applications together with all capital funding projects and
resources which are, or which may be, necessarily incidental thereto;
(e) leadership in the negotiation of all proposed or potential joint
venture and/or financing arrangements in connection with the ongoing
development of the Business and each of their proposed or potential
commercial applications;
(f) leadership in the preparation and dissemination of any and all
business plans, news releases and special shareholder or investment
reports for the Company, or for any of the Company's subsidiaries, as
the case may be and as may be determined by the Company in its sole
and absolute discretion, and in connection with the ongoing
development and financing of the Business;
(g) leadership in the setting up of all corporate alliances for the
Company, or for any of the Company's subsidiaries, as the case may be
and as may be determined by the Company in its sole and absolute
discretion, with all potential and strategic business and financial
partners for the purposes of the ongoing development and financing of
the Business; and
(h) leadership in all other development and financing services in
connection with the Business as may be directed, from time to time, by
the Board of Directors of the Company in its sole and absolute
discretion.
2.3 Additional Duties respecting the Services. Without in any manner limiting
the generality of the General Services and Specific Services (collectively also
called the "Services") it is hereby also agreed that the Consultant will devote
such of the Consultant's time to the Services as may be determined and required,
from time to time, by the Board of Directors of the Company, in its sole and
absolute discretion, for the performance of said Services faithfully,
diligently, to the best of the Consultant's abilities and in the best interests
of the Company. In addition it is hereby also agreed that the Consultant will:
(a) be responsible for the initiation, planning, direction and execution
of such development and financing programs as may be necessary for the
Business so as to allow them to be highly productive and profitable
for the Company;
(b) be responsible for maintaining a strong industry profile through
ongoing liaising with the public and the media and through
participation at Business conferences;
(c) be responsible for the identification and recommendation of suitable
development and public relations staff for the Company, or for any of
the Company's subsidiaries, as the case may be and as may be
determined by the Company in its sole and absolute discretion, to both
provide and lead further services for or in connection with the
ongoing development and financing of the Business and Business; and
(d) be responsible for all other development and financing services in
connection with the Business as may be directed, from time to time, by
the Board of Directors of the Company in its sole and absolute
discretion.
4
Article 3
TERM, RENEWAL AND TERMINATION
-----------------------------
3.1 Term. The term of this Agreement (the "Term") is for a period of five
calendar years commencing on the Effective Date.
3.2 Annual Performance Review. The performance of the Consultant will be
reviewed annually. However, if the Company decides to terminate the Agreement
based upon the Consultant's performance, then all of the provisions of Artilce 3
will apply.
3.3 Automatic Renewal by the Company. This Agreement shall renew automatically
for subsequent two year periods if not specifically terminated in accordance
with the below provisions. The Company agrees to notify the Consultant in
writing at least 120 calendar days prior to the end of the Term of its intent
not to renew this Agreement (the "Company's Non-Renewal Notice"). Should the
Company fail to provide a Company's Non-Renewal Notice this Agreement shall
automatically renew on a two year to two year basis after the Term until
specifically terminated by a Company's Non-Renewal Notice within 120 calendar
days prior to the end of any such one year renewal period. Any such renewal
shall be on the same terms and conditions contained herein unless modified and
agreed to in writing by the Parties.
3.4 Termination for cause by the Company. Notwithstanding any other provision of
this Agreement, this Agreement may be terminated at any time by the Company in
the event:
(a) the Consultant fails to cure a material breach of any provision of
this Agreement within 30 calendar days from its receipt of written
notice from the Company (unless such breach cannot be reasonably cured
within said 30 calendar days and the Consultant is actively pursuing
to cure said breach);
(b) the Consultant is willfully non-compliant in the performance of the
Consultant's respective duties under this Agreement within 30 calendar
days from its receipt of written notice from the Company (unless such
willful non-compliance cannot be reasonably corrected within said 30
calendar days and the Consultant is actively pursuing to cure said
willful non-compliance);
(c) the Consultant commits fraud or serious neglect or misconduct in the
discharge of the Consultant's respective duties hereunder or under the
law; or
(d) the Consultant becomes adjudged bankrupt or a petition for
reorganization or arrangement under any law relating to bankruptcy,
and where any such involuntary petition is not dismissed within 30
calendar days.
In any such event the respective obligations of each of the Parties hereto
under this Agreement (and including, without limitation, the Consultant's
ongoing obligation to provide the Services and the Company's ongoing obligation
to provide the Fee, the Expense payment reimbursements and the Options (each as
hereinafter determined) will immediately terminate. However, where the
Consultant disputes a notice hereunder, the burden shall be on the Company and
this Agreement shall continue in full force and effect until agreement as to
resolution or determination (final or interlocatory) by a competent tribunal.
3.5 Termination without cause by the Company. Notwithstanding any other
provision of this Agreement, this Agreement may also be terminated by the
Company at any time after the Effective Date and during the Term, and any
extension, upon its delivery to the Consultant of written notice, or payment in
lieu, of its intention to do so (the "Company's Notice of Termination") at least
180 calendar days prior to the effective date of any such termination, excepting
5
only if less remains in the Term then for the remainder of the Term and with
proper giving of the Company's Non-Renewal Notice (the last day of such notice
period called the "Effective Termination Date"). In any such event the
respective obligations of each of the Parties hereto under this Agreement (and
including, without limitation, the Consultant's ongoing obligation to provide
the Services and the Company's ongoing obligation to provide the Fee, the
Expense payment reimbursements and the Options) will continue until such
Effective Termination Date as provided for in the Company's Notice of
Termination and, furthermore, upon the Effective Termination Date the Company
will also be obligated to provide the Consultant the Termination Fee.
3.6 Termination Fee. In the event that this Agreement is terminated after the
issuance of a Non-Renewal Notice or issuance of a Company Notice of Termination,
or fails to renew due to failure of agreement of negotiation terms, the
Consultant shall receive a termination fee (the "Termination Fee") equal to the
sum of:
(a) at the Consultant's election, continuance of any option for the lesser
of one year or the period permitted by applicable regulation, or
buy-out of any outstanding stock options for a price equal to the
thirty day average market price of the Company's shares on its
principal trading exchange the day prior to either party's termination
notice and multiplied by the number of shares under option and less
the exercise price thereof; plus
(b) the multiple of:
(i) the aggregate remaining Fee for the unexpired remainder of the
Term; plus
(ii) three months of Fee for each year, or portion thereof, served
after the Effective Date;
but that any Fee multiple shall not be less than 12 and not more than
24, except as set forth below.
Notwithstanding the foregoing, this Agreement shall be considered terminated
without fault of the Consultant, at its sole option at any time within six
months of its reasonable knowledge of such event, and the Termination Fee shall
be paid as liquidated damages for imputed constructive breach if:
(a) without the consent of the Consultant, its representative person, is
removed or not reappointed as an officer or director of the Company;
or
(b) without the consent of the Consultant or without agreement as to a
termination fee multiple if the Consultant wishes to resign or is to
be terminated, there is a change of control of the Board of Directors
or of the Company; or
(c) this Agreement is terminated or repudiated by the Company without due
and proper cause or otherwise not in compliance with this Agreement;
and the Parties acknowledge that the foregoing actions, if effected without the
Consultant's consent, would materially damage the Consultant's interests or
reputation.
3.7 Disability or Death. In the event that the Consultant is unable to provide
the Services due to protracted disability or sickness or the death of its
principal, it may, at any time, declare such to the Company and may terminate
this Agreement as a without fault termination and the Termination Fee shall be
payable. The Company may elect to effect such termination, and shall pay the
Termination Fee, in the case of death of the Consultant's principal or in the
event that sickness or disability has continued for a period in excess of 120
days.
6
Article 4
GENERAL SERVICES COMPENSATION OF THE CONSULTANT
-----------------------------------------------
4.1 Fee. It is hereby agreed that the Consultant shall render the Services on a
monthly basis of a fee of $8000 CDN (the "Fee"); with such Fee being due and
payable by the Company to the Consultant, in the Consultant's sole and absolute
discretion, in either United States or Canadian dollars and with a
pre-determined exchange rate of U.S. $1.00 equaling Cdn. $1.50; and with such
Fee being due and payable on the first business day of the month in advance. It
is understood that the Fee retains the services of the Consultant and its
personnel for an aggregate of up to 30 man-hours per week ("Retained Hours"),
averaged and aggregated on a monthly basis. Personnel of the Consultant provided
to the Company shall have the benefit of all such medical, dental, insurance,
and other plans as are generally provided to personnel of the Company. The
Company shall pay a car allowance of $600 per month plus operating and insurance
costs. The Company shall further pay annual membership for two clubs employed
for business purposes to an amount not to exceed $8,000 in aggregate. The
Company agrees that the board of directors will in good faith annually consider
reasonable industry standard bonuses based on the performance of the Company.
4.2 Review and Adjustment to the Fee. It is agreed that the Fee will be reviewed
on an annual basis commencing on the Effective Date and during the Term and
during the continuance of this Agreement and shall be adjusted upward, from time
to time, by a minimum of either the greater of (a) five percent (5%) or (b) such
other amount as may, from time to time, be independently determined to equate to
such annual remuneration which is then being paid by similar companies in
similar industry sectors to their senior executive officers and/or directors as
may be in the position of Xx. Xxxxxxx with the Company. In the event that the
Parties cannot agree then the matter may be arbitrated unless the Parties elect
to permit the 5% adjustment to apply.
4.3 Stock Options. It is hereby understood and agreed that, as soon as
conveniently possible after the Effective Date and, in any event, during the
Term and during continuance of this Agreement, the Consultant will be granted,
subject to the rules and policies of such regulatory authorities and/or stock
exchange(s) which, from time to time, may have jurisdiction over the affairs of
the Company, an incentive stock option or stock options to acquire common shares
in the Company (each an "Option"). When exercised such stock option shall be
renewed at the earliest possible time and at the best price available under
prevailing regulation and practice. It is also hereby understood and agreed that
any such Option will be exercisable for a period of at least two years from the
date of granting and, in any event, for so long as this Agreement is in
existence and for a period of at least 30 calendar days thereafter, at the best
exercise price granted to other officers and directors from time to time and at
a size at least equal to that granted to other senior officers and directors.
4.4 Reimbursement of Expenses. It is agreed that the Consultant shall be
reimbursed for all expenses incurred by the Consultant for the benefit of the
Company (collectively, the "Expenses") and which Expenses shall be payable by
the Company within 30 days of delivery by the Consultant of written
substantiation on account of each such reimbursable Expense.
7
Article 5
ADDITIONAL OBLIGATIONS OF THE CONSULTANT AND THE COMPANY
--------------------------------------------------------
5.1 Reporting by the Consultant. The Consultant will provide its reports on its
activities to the Board of Directors at their periodic meetings or at such other
times as the board may reasonably request.
5.2 Confidentiality by the Consultant. The Consultant will not, except as
authorized or required by the Consultant's duties hereunder, reveal or divulge
to any person or companies any information concerning the organization,
business, finances, transactions or other affairs of the Company, or of any of
its subsidiaries, which may come to the Consultant's knowledge during the Term
and during the continuance of this Agreement, and the Consultant will keep in
complete secrecy all confidential information entrusted to the Consultant and
will not use or attempt to use any such information in any manner which may
injure or cause loss either directly or indirectly to the Company's respective
businesses. This restriction will continue to apply after the termination of
this Agreement without limit in point of time but will cease to apply to
information or knowledge which may come into the public domain.
5.3 Compliance with Applicable Laws by the Consultant. The Consultant will
comply with all Canadian, U.S. and foreign laws, whether federal, provincial or
state, applicable to the Consultant's duties hereunder and, in addition, hereby
represents and warrants that any information which the Consultant may provide to
any person or company hereunder will, to the best of the Consultant's knowledge,
information and belief, be accurate and complete in all material respects and
not misleading, and will not omit to state any fact or information which would
be material to such person or company.
5.4 Opinions, Reports and Advice of the Consultant. The Consultant acknowledges
and agrees that all written and oral opinions, reports, advice and materials
provided by the Consultant to the Company in connection with the Consultant's
engagement hereunder are intended solely for the Company's benefit and for the
Company's use only, and that any such written and oral opinions, reports, advice
and information are the exclusive property of the Company. In this regard the
Consultant covenants and agrees that the Company may utilize any such opinion,
report, advice and materials for any other purpose whatsoever and, furthermore,
may reproduce, disseminate, quote from and refer to, in whole or in part, at any
time and in any manner, any such opinion, report, advice and materials in the
Company's sole and absolute discretion. The Consultant further covenants and
agrees that no public references to the Consultant or disclosure of the
Consultant's role in respect of the Company be made by the Consultant without
the prior written consent of the Company in each specific instance and,
furthermore, that any such written opinions, reports, advice or materials shall,
unless otherwise required by the Company, be provided by the Consultant to the
Company in a form and with such substance as would be acceptable for filing with
and approval by any Regulatory Authority having jurisdiction over the affairs of
the Company from time to time.
5.5 Consultant's Business conduct. The Consultant warrants that it shall conduct
its Services and other related activities in a manner which is lawful and
reputable and which brings good repute to the Company, the Consultant and the
Business. In this regard the Consultant warrants to provide all Services in a
sound and professional manner such that the same meets superior standards of
performance quality within the standards of the industry or as set by the
specifications of the Company.
5.6 Right of Ownership to the Business and related Property. The Consultant
hereby acknowledges and agrees that any and all Business, other Company assets,
together with any improvements derived therefrom, and any patents, copyright,
trade marks or trade names used in connection with the same (collectively, the
"Property"), are wholly owned and controlled by the Company. In this regard the
Consultant hereby further covenants and agrees not to, during or after the Term,
8
contest the title to any of the Company's Property interests, in any way dispute
or impugn the validity of the Company's Property interests or take any action to
the detriment of the Company's interests therein. The Consultant acknowledges
that, by reason of the unique nature of the Property interests, and by reason of
the Consultant's knowledge of and association with the Property interests during
the Term, the aforesaid covenant, both during the term of this Agreement and
thereafter, is reasonable and commensurate for the protection of the legitimate
business interests of the Company. The Consultant hereby further covenants and
agrees to immediately notify the Company of any infringement of or challenge to
the any of the Company's Property interests as soon as the Consultant becomes
aware of the infringement or challenge.
Article 6
INDEMNIFICATION AND LEGAL PROCEEDINGS
-------------------------------------
6.1 Indemnification. The Parties hereto hereby each agree to indemnify and save
harmless the other Party hereto and including, where applicable, their
respective subsidiaries and affiliates and each of their respective directors,
officers, employees and agents (each such party being an "Indemnified Party")
harmless from and against any and all losses, claims, actions, suits,
proceedings, damages, liabilities or expenses of whatever nature or kind and
including, without limitation, any investigation expenses incurred by any
Indemnified Party, to which an Indemnified Party may become subject by reason of
the terms and conditions of this Agreement.
6.2 No Indemnification. This indemnity will not apply in respect of an
Indemnified Party in the event and to the extent that a Court of competent
jurisdiction in a final judgment shall determine that the Indemnified Party was
grossly negligent or guilty of willful misconduct.
6.3 Claim of Indemnification. The Parties hereto agree to waive any right they
might have of first requiring the Indemnified Party to proceed against or
enforce any other right, power, remedy, security or claim payment from any other
person before claiming this indemnity.
6.4 Notice of Claim. In case any action is brought against an Indemnified Party
in respect of which indemnity may be sought against either of the Parties
hereto, the Indemnified Party will give both Parties hereto prompt written
notice of any such action of which the Indemnified Party has knowledge and the
relevant Party will undertake the investigation and defense thereof on behalf of
the Indemnified Party, including the prompt employment of counsel acceptable to
the Indemnified Party affected and the relevant Party and the payment of all
expenses. Failure by the Indemnified Party to so notify shall not relieve the
relevant Party of such relevant Party's obligation of indemnification hereunder
unless (and only to the extent that) such failure results in a forfeiture by the
relevant Party of substantive rights or defenses.
6.5 Settlement. No admission of liability and no settlement of any action shall
be made without the consent of each of the Parties hereto and the consent of the
Indemnified Party affected, such consent not to be unreasonable withheld.
6.6 Legal Proceedings. Notwithstanding that the relevant Party will undertake
the investigation and defense of any action, an Indemnified Party will have the
right to employ separate counsel in any such action and participate in the
defense thereof, but the fees and expenses of such counsel will be at the
expense of the Indemnified Party unless:
9
(a) such counsel has been authorized by the relevant Party;
(b) the relevant Party has not assumed the defense of the action within a
reasonable period of time after receiving notice of the action;
(c) the named parties to any such action include that any Party hereto and
the Indemnified Party shall have been advised by counsel that there
may be a conflict of interest between any Party hereto and the
Indemnified Party; or
(d) there are one or more legal defenses available to the Indemnified
Party which are different from or in addition to those available to
any Party hereto.
6.7 Contribution. If for any reason other than the gross negligence or bad faith
of the Indemnified Party being the primary cause of the loss claim, damage,
liability, cost or expense, the foregoing indemnification is unavailable to the
Indemnified Party or insufficient to hold them harmless, the relevant Party
shall contribute to the amount paid or payable by the Indemnified Party as a
result of any and all such losses, claim, damages or liabilities in such
proportion as is appropriate to reflect not only the relative benefits received
by the relevant Party on the one hand and the Indemnified Party on the other,
but also the relative fault of relevant Party and the Indemnified Party and
other equitable considerations which may be relevant. Notwithstanding the
foregoing, the relevant Party shall in any event contribute to the amount paid
or payable by the Indemnified Party, as a result of the loss, claim, damage,
liability, cost or expense (other than a loss, claim, damage, liability, cost or
expenses, the primary cause of which is the gross negligence or bad faith of the
Indemnified Party), any excess of such amount over the amount of the fees
actually received by the Indemnified Party hereunder.
10
Article 7
FORCE MAJEURE
-------------
7.1 Events. If either Party hereto is at any time either during this Agreement
or thereafter prevented or delayed in complying with any provisions of this
Agreement by reason of strikes, walk-outs, labour shortages, power shortages,
fires, wars, acts of God, earthquakes, storms, floods, explosions, accidents,
protests or demonstrations by environmental lobbyists or native rights groups,
delays in transportation, breakdown of machinery, inability to obtain necessary
materials in the open market, unavailability of equipment, governmental
regulations restricting normal operations, shipping delays or any other reason
or reasons beyond the control of that Party, then the time limited for the
performance by that Party of its respective obligations hereunder shall be
extended by a period of time equal in length to the period of each such
prevention or delay.
7.2 Notice. A Party shall within three calendar days give notice to the other
Party of each event of force majeure under section "7.1" hereinabove, and upon
cessation of such event shall furnish the other Party with notice of that event
together with particulars of the number of days by which the obligations of that
Party hereunder have been extended by virtue of such event of force majeure and
all preceding events of force majeure.
Article 8
ARBITRATION
-----------
8.1 Matters for Arbitration. The Parties agree that all questions or matters in
dispute with respect to this Agreement shall be submitted to arbitration
pursuant to the terms hereof.
8.2 Notice. It shall be a condition precedent to the right of any Party to
submit any matter to arbitration pursuant to the provisions hereof, that any
Party intending to refer any matter to arbitration shall have given not less
than five business days' prior written notice of its intention to do so to the
other Party together with particulars of the matter in dispute. On the
expiration of such five business days the Party who gave such notice may proceed
to refer the dispute to arbitration as provided for in section "8.3"
hereinbelow.
8.3 Appointments. The Party desiring arbitration shall appoint one arbitrator,
and shall notify the other Party of such appointment, and the other Party shall,
within five business days after receiving such notice, appoint an arbitrator,
and the two arbitrators so named, before proceeding to act, shall, within five
business days of the appointment of the last appointed arbitrator, unanimously
agree on the appointment of a third arbitrator, to act with them and be chairman
of the arbitration herein provided for. If the other Party shall fail to appoint
an arbitrator within five business days after receiving notice of the
appointment of the first arbitrator, and if the two arbitrators appointed by the
Parties shall be unable to agree on the appointment of the chairman, the
chairman shall be appointed in accordance with the Arbitration Act. Except as
specifically otherwise provided in this section, the arbitration herein provided
for shall be conducted in accordance with such Arbitration Act. The chairman, or
in the case where only one arbitrator is appointed, the single arbitrator, shall
fix a time and place for the purpose of hearing the evidence and representations
of the Parties, and he shall preside over the arbitration and determine all
questions of procedure not provided for by the Arbitration Act or this section.
After hearing any evidence and representations that the Parties may submit, the
single arbitrator, or the arbitrators, as the case may be, shall make an award
and reduce the same to writing, and deliver one copy thereof to each of the
Parties. The expense of the arbitration shall be paid as specified in the award.
11
8.4 Award. The Parties agree that the award of a majority of the arbitrators, or
in the case of a single arbitrator, of such arbitrator, shall be final and
binding upon each of them.
Article 9
GENERAL PROVISIONS
------------------
9.1 Entire Agreement. This Agreement constitutes the entire agreement to date
between the Parties hereto and supersedes every previous agreement, expectation,
negotiation, representation or understanding, whether oral or written, express
or implied, statutory or otherwise, between the Parties with respect to the
subject matter of this Agreement.
9.2 No Assignment. This Agreement may not be assigned by either Party hereto
except with the prior written consent of the other Party.
9.3 Notice. Each notice, demand or other communication required or permitted to
be given under this Agreement shall be in writing and shall be sent by prepaid
registered mail deposited in a recognized post office and addressed to the Party
entitled to receive the same, or delivered to such Party, at the address for
such Party specified on the front page of this Agreement. The date of receipt of
such notice, demand or other communication shall be the date of delivery thereof
if delivered, or, if given by registered mail as aforesaid, shall be deemed
conclusively to be the third day after the same shall have been so mailed,
except in the case of interruption of postal services for any reason whatsoever,
in which case the date of receipt shall be the date on which the notice, demand
or other communication is actually received by the addressee. Either Party may
at any time and from time to time notify the other Party in writing of a change
of address and the new address to which notice shall be given to it thereafter
until further change.
9.4 Time of the Essence. Time will be of the essence of this Agreement.
9.5 Enurement. This Agreement will enure to the benefit of and will be binding
upon the Parties hereto and their respective heirs, executors, administrators
and assigns.
9.6 Currency. Unless otherwise stipulated, all payments required to be made
pursuant to the provisions of this Agreement and all money amount references
contained herein are in lawful currency of Canada.
9.7 Further Assurances. The Parties will from time to time after the execution
of this Agreement make, do, execute or cause or permit to be made, done or
executed, all such further and other acts, deeds, things, devices and assurances
in law whatsoever as may be required to carry out the true intention and to give
full force and effect to this Agreement.
12
9.8 Representation and Costs. It is hereby acknowledged by each of the Parties
hereto that, as between the Company and the Consultant herein, Xxxxxx Xxxxxx
acts solely for the Company, and that the Consultant has been advised by both
Xxxxxx Xxxxxx and the Company to obtain independent legal advice with respect to
the Consultant's review and execution of this Agreement. In addition, it is
hereby further acknowledged and agreed by the Parties hereto that each Party to
this Agreement will bear and pay its own costs, legal and otherwise, in
connection with its respective preparation, review and execution of this
Agreement and, in particular, that the costs involved in the preparation of this
Agreement, and all documentation necessarily incidental thereto, by Xxxxxx
Xxxxxx shall be at the cost of the Company.
9.9 Applicable Law. The situs of this Agreement is Vancouver, British Columbia,
and for all purposes this Agreement will be governed exclusively by and
construed and enforced in accordance with the laws and Courts prevailing in the
Province of British Columbia.
9.10 Severability and Construction. Each Article, section, paragraph, term and
provision of this Agreement, and any portion thereof, shall be considered
severable, and if, for any reason, any portion of this Agreement is determined
to be invalid, contrary to or in conflict with any applicable present or future
law, rule or regulation in a final unappealable ruling issued by any court,
agency or tribunal with valid jurisdiction in a proceeding to which any Party
hereto is a party, that ruling shall not impair the operation of, or have any
other effect upon, such other portions of this Agreement as may remain otherwise
intelligible (all of which shall remain binding on the Parties and continue to
be given full force and effect as of the date upon which the ruling becomes
final).
9.11 Captions. The captions, section numbers and Article numbers appearing in
this Agreement are inserted for convenience of reference only and shall in no
way define, limit, construe or describe the scope or intent of this Agreement
nor in any way affect this Agreement.
9.12 Counterparts. This Agreement may be signed by the Parties hereto in as many
counterparts as may be necessary, and via facsimile if necessary, each of which
so signed being deemed to be an original and such counterparts together
constituting one and the same instrument and, notwithstanding the date of
execution, being deemed to bear the execution date as set forth on the front
page of this Agreement.
9.13 No Partnership or Agency. The Parties have not created a partnership and
nothing contained in this Agreement shall in any manner whatsoever constitute
any Party the partner, agent or legal representative of the other Party, nor
create any fiduciary relationship between them for any purpose whatsoever.
9.14 Consents and Waivers. No consent or waiver expressed or implied by either
Party in respect of any breach or default by the other in the performance by
such other of its obligations hereunder shall:
(a) be valid unless it is in writing and stated to be a consent or waiver
pursuant to this section;
(b) be relied upon as a consent to or waiver of any other breach or
default of the same or any other obligation;
(c) constitute a general waiver under this Agreement; or
(d) eliminate or modify the need for a specific consent or waiver pursuant
to this section in any other or subsequent instance.
13
IN WITNESS WHEREOF the Parties hereto have hereunto set their respective
hands and seals as at the Effective Date as hereinabove determined.
The COMMON SEAL of )
Olympic Resources Ltd., )
----------------------- )
the Company herein, )
was hereunto affixed in the presence of: )
/s/ Xxxxxxx Xxxxxxxxx )
--------------------- )
Authorized Signatory )
The COMMON SEAL of )
DWP Consultants )
--------------- )
the Consultant herein, )
was hereunto affixed in the presence of: )
/s/ Xxxxx Xxxxxxx )
----------------- )
Authorized Signatory )
14
