SUPPLY OF SERVICES AGREEMENT
THIS SUPPLY OF SERVICES
AGREEMENT (the “Agreement”) is entered into
with effect from 19th January
2010 the “Effective Date”,
between Imperial Oil and Gas, Inc. a Delaware Corporation having an
address at Xxxxx 0000, 000-0xx Xxx XX,
Xxxxxxx, XX X0X 0X0 (the “Company”), and Little Eagle
Resources Inc. a body corporate, having an office at the City of Calgary, in the
Province of Alberta (“Little Eagle”), and Xxxx XxXxxxxxx (“the Contractor”),
whereby Little Eagle agrees to provide certain services (“the Services”) to the
Company. Little Eagle agrees that the Services will be provided by
the Contractor. The Parties to this Agreement are the Company, Little
Eagle and the Contractor.
The
Contractor agrees to provide such services and to be bound by this Agreement as
if he had entered into it in his own right as a self employed contractor in the
event that Little Eagle is no longer able to procure or does not procure the
Services for whatever reason and, likewise, the Company agrees that the
Agreement shall continue in full force as if it were a contract between the
Contractor and the Company in the event of the dissolution of Little
Eagle. In such circumstances references to Little Eagle herein shall
be construed as references to the Contractor as a self employed
contractor.
NOW, THEREFORE, in
consideration of the mutual covenants, representations, warranties and
agreements contained herein, and for other valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE
I: Definitions and Interpretations
1.1 Definitions
For
purposes of this Agreement, except as otherwise expressly provided or unless the
context otherwise requires, the following terms shall have the following
respective meanings:
“Base Fee” shall have the
meaning specified in Section 3.1.
“Board of Directors” shall
mean the Board of Directors of the Company.
“Cause” shall have the
meaning specified in Section 4.3.
“Company” will also include
its subsidiaries, parents and affiliates where it is reasonably logical the use
of the word would include such other entities, and include any successor to its
business and/or substantially all its assets which executes and delivers the
Agreement as provided for in Section 7.4 or which otherwise becomes bound by all
terms and provisions of this Agreement by operation of law.
“Confidential Information”
shall have the meaning specified in Section 5.1(a).
“Dispute” shall have the
meaning specified in Article VI.
“Expiration Date” shall have
the meaning specified in Section 2.2.
“Notice of Termination”
shall mean a notice purporting to terminate this Agreement in accordance
with Section 4.1, 4.2 or 4.3.
“Person” shall mean and
include an individual, a Partnership, a joint venture, a corporation, a trust
and an unincorporated organization.
“Incentive Fee” shall have
the meaning specified in Section 3.2.
“Term” shall have the meaning
specified in Section 2.2.
“Termination Date” shall mean
the termination date specified in a Notice of Termination delivered in
accordance with this Agreement.
1.2 Interpretations
(a) In
this Agreement, unless a clear contrary intention appears, (i) 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, (ii) reference to any Article or Section, means such Article or
Section hereof, (iii) the words “including” (and with correlative meaning
“include”) means including, without limiting the generality of any description
preceding such term, and (iv) where any provision of this Agreement refers to
action to be taken by either party, or which such party is prohibited from
taking, such provision shall be applicable whether such action is taken directly
or indirectly by such party.
(b) For
the avoidance of doubt this Agreement refers to the provision of certain
services to be provided by the Contractor in his capacity as a Contractor of
Little Eagle.
(c) The
Article and Section headings herein are for convenience only and shall not
affect the construction hereof.
(d) For
the avoidance of doubt it is specifically agreed between the Parties that
nothing in this agreement shall be construed as inferring any employment rights
and obligations between the Company and/or any of its subsidiaries and
associates and the Contractor or Little Eagle and, as a result, the Company
shall have no obligation or right to make any withholding tax deductions, unless
required to do so by law. Little Eagle warrants and represents to The
Company that it shall be solely responsible for any income, social security or
other taxation liabilities that are payable on the compensation referred to
herein.
ARTICLE
II: Services, Compensation etc.
2.1 Service
Arrangement
The
Company agrees to contract with Little Eagle to provide the Services of the
Contractor as further described herein, Little Eagle agrees that the Contractor
will provide such services and the Contractor agrees to provide such
services.
2.2 Term of
Agreement
Unless
sooner terminated pursuant to Article IV, the term of this Agreement (the “Term”) shall end on
December 31, 2010, subject to extension as herein provided. The
Term will be automatically extended by an additional one 1 month, unless one
party gives written notice to the other at least one 1 month before the then
effective Expiration Date indicating that the party does not extend Term of the
Agreement. If the Term is extended, then the Expiration Date will be
automatically extended by a corresponding one 1 month. The right not
to extend the Term and corresponding Expiration Date is separate from the right
to give a Notice of Termination herein.
2.3 Services
(a) During
the Term of the Agreement, the Contractor shall provide such professional and
related services as are required to maintain and develop the Company's oil and
gas exploration and development interests or as are reasonably required to
assist the Company in any other way.
(b) During
the Term of the Agreement, the Contractor shall (i) report to the Board of
Directors and (ii) observe and comply with all lawful policies, directions and
instructions of the Board of Directors and the Company that are consistent with
the provisions of this paragraph 2.3.
(c) During
the Term of the Agreement, the Contractor shall devote sufficient of his
business time, attention, skill and efforts to the faithful and efficient
performance of the provision of the Services as is reasonably
required.
(d) The
Contractor shall maintain outline records of time spent in accordance with this
Agreement.
(e) The
Company acknowledges that Little Eagle has other clients and that the Contractor
has other commitments which he needs to attend to. Little Eagle and
the Contractor agree to not accept any other client that may create a conflict
with services to be provided to the Company.
(f) During
the currency of this Agreement, the Contractor and Little Eagle shall not
knowingly prejudice, in any material respect, the reputation of the Company in
the fields of business in which it is engaged or with the investment community
or the public at large.
(g) If
elected or appointed thereto, and only for the duration of such elected term or
appointment, the Contractor shall, as an integral part of and to facilitate the
provision of the Services referred to herein, serve as a director of the Company
and any of its subsidiaries, provided that the Contractor is indemnified for
serving in any and all such capacities on a basis consistent with that provided
by the Company to other directors and executive officers of the Company or
similarly situated executive officers of any such subsidiaries.
(h) Little
Eagle and the Contractor represent that there are no restrictions imposed upon
it or them by any covenants or agreements arising out of any prior engagement
which materially affect its or their ability to provide the services set forth
in this Agreement.
ARTICLE
III: Fees and Expenses
3.1 Base Fee
(a) For
services rendered by Little Eagle under this Agreement, the Company shall pay to
Little Eagle a base monthly fee of up to $2,000 USD to be paid at the end of
each month in US dollars, other than if this base fee is varied downward or
deferred by the decision of the board of the Company and to which decision
Little Eagle shall not object, to a bank account nominated by Little Eagle and
maintained in its name. The amount is exclusive of any GST at 5% that
is or may be payable.
(b) The
Contractor shall be granted such Gross Overriding Royalty (“GOR”) payments under
the terms of the Royalty Agreement in Schedule 2 to this agreement.
3.2 Incentive
Fee
During
the Term, the Parties may agree from time to time to modify this Agreement so as
to engage Little Eagle to provide services over and above those set out in this
Agreement and/or to provide incentive to Little Eagle to add exceptional
value.
3.3 Expense
Reimbursement
The
Company shall reimburse Little Eagle for all reasonable travel and other
business expenses incurred by the Contractor in the performance of the
Services. Such expenses shall be submitted monthly in arrears and
Little Eagle shall retain and make available for inspection all supporting
vouchers for the duration of the Agreement. Expense reimbursements
shall be made in line with the principles set out in the Companies policies that
apply to its employees as modified by agreement from time to time made in
writing between the Parties.
ARTICLE
IV: Termination
4.1 Termination by Little
Eagle
Little
Eagle may, at any time prior to the Expiration Date, terminate the provision of
the Agreement for any reason by delivering a Notice of Termination to the Board
of Directors. The Notice of Termination shall be effective not less
than 30 days after the date of the notice and state the effective Termination
Date and if none is specified then the Termination Date will be the 30th day
after the date of the Notice of Termination. The Termination Date
under this provision may be beyond the Expiration Date.
4.2 Termination by the
Company
The Board
of Directors may, at any time after the date of this Agreement and prior to the
Expiration Date, terminate the Agreement for any reason by delivering a Notice
of Termination to Little Eagle and the Contractor. The Notice of
Termination by the Company shall be effective not less than 30 days after the
date of the notice and state the effective Termination Date and if none is
specified then the Termination Date will be the 30th day
after the date of the Notice of Termination. The Termination Date
under this provision may be beyond the Expiration Date.
4.3 Termination for
Cause
The
Company may terminate the Agreement for “Cause” upon the giving of a Notice of
Termination to Little Eagle and the Contractor, subject to the terms of this
sub-part, which shall be effective immediately. The Notice of
Termination for Cause shall state the basis for the notice. The
Company shall have “Cause” to terminate the Agreement during the Term of this
Agreement, if the Contractor's actions result in:
(a) Failure
to materially provide the Services to a reasonable standard after written notice
and reasonable opportunity for cure,
(b) Conviction
of the Contractor of a felony or any crime involving embezzlement or theft
during the Term or any embezzlement or theft from the Company whether or not the
subject of a conviction; or
(c) Serious
willful misconduct by the Contractor, including fraud willful dishonesty or the
substantial breach of any fiduciary duty owed to the Company.
4.4 Resignations
In the
event of a termination of this Agreement the Contractor shall immediately resign
any office or directorship in the Company or any of its Subsidiaries of
Associates which he holds by virtue of this Agreement or otherwise this contract
is to be replaced with a similar contract under circumstances where at its sole
discretion the Board of Directors shall determine that the Contractor should
continue to serve in any office or directorship.
4.5 Payment in the event of
Termination.
(a) After
the termination of the Agreement for any reason by the Company, including the
inability of Little Eagle to provide services due to disability of the
Contractor, but other than for Cause, the Company shall pay to Little Eagle the
aggregate of any unpaid Base Fee earned by that Contractor hereunder prior to
the Termination Date and any unreimbursed expenses.
(b) Upon
termination of the Agreement by Little Eagle (and for this purpose the death of
the Contractor shall be regarded as Termination by Little Eagle with Notice
given from the date of the Contractor's death) the Company shall pay Little
Eagle any unpaid Base Fee earned hereunder prior to the Termination Date and any
unreimbursed expenses.
ARTICLE
V: Confidential Information and Non-Competition
5.1 Confidential
Information
(a) Little
Eagle and the Contractor recognize that the services to be performed hereunder
are special, unique, and extraordinary and that, by reason of the Agreement, the
Contractor and Little Eagle may acquire Confidential Information concerning the
operation of the Company, the use or disclosure of which would cause the Company
substantial loss and damages which could not be readily calculated and for which
no remedy at law would be adequate. Accordingly, the Contractor and
Little Eagle agree with the Company that they will not (directly or indirectly)
at any time, whether during or after the Term, (i) knowingly use for an improper
personal benefit any Confidential Information that the Contractor may learn or
has learned by reason of the Agreement with the Company; or (ii) disclose any
such Confidential Information to any Person except (A) in the performance of
Little Eagle's obligations to the Company hereunder, (B) as required by
applicable law, (C) in connection with the enforcement of Little Eagle's rights
under this Agreement, (D) in connection with any disagreement, dispute or
litigation (pending or threatened) between the Contractor or Little Eagle and
the Company or (E) with the prior written consent of the Board of
Directors. As used herein, “Confidential Information” includes
information with respect to the operation and performance of the Company, its
investments, portfolio companies, products, services, facilities, product
methods, research and development, trade secrets and other intellectual
property, systems, patents and patent applications, procedures, manuals,
confidential reports, product price lists, customer lists, financial
information, business plans, prospects or opportunities (including, as
applicable, all of the foregoing information regarding the Company's past,
current and prospective portfolio companies); provided, however, that such term,
shall not include any information that (x) is or becomes generally known or
available other than as a result of a disclosure by the Contractor or (y) is or
becomes known or available to the Contractor on a nonconfidential basis from a
source (other than the Company) that, to the Contractor's knowledge, is not
prohibited from disclosing such information to the Contractor by a legal,
contractual, fiduciary or other obligation to the Company.
(b) The
Contractor and Little Eagle each confirm that all Confidential Information is
the exclusive property of the Company. All business records, papers
and documents kept or made by the Contractor or Little Eagle during the Term
relating to the business of the Company shall be and remain the property of the
Company at all times. Upon the request of the Company at any time,
the Contractor and Little Eagle shall promptly deliver to the Company, and shall
retain no copies of, any written materials, records and documents made or coming
into the Contractor's or Little Eagle's possession during the Term concerning
the business or affairs of the Company other than personal materials, records
and documents (including notes and correspondence) of the Contractor not
containing proprietary information relating to such business or
affairs. Notwithstanding the foregoing, the Contractor and Little
Eagle shall be permitted to retain copies of, or have access to, all such
materials, records and documents relating to any disagreement, dispute or
litigation (pending or threatened) between them and the Company.
ARTICLE
VI: Dispute Resolution
6.1 Disputes
(a) The
Parties will attempt to resolve any dispute arising under this Agreement through
consultation and negotiation in good faith. If those attempts fail,
the parties will then attempt to resolve that dispute through mediation, with
costs of the mediation being shared equally by the parties. However,
any Party to the dispute may terminate the mediation at any time upon reasonable
notice to the other Parties and, if it chooses, resort to judicial proceedings
to resolve the dispute.
ARTICLE
VII: Miscellaneous
7.1 Assignability
The
obligations of Little Eagle hereunder are personal to the Contractor and may not
be assigned or delegated by Little Eagle or transferred in any manner
whatsoever, nor are such obligations subject to involuntary alienation,
assignment or transfer. The Company shall have the right to assign
this Agreement and to delegate all rights, duties and obligations hereunder as
provided in Section 4, provided always that it will continue to be liable for
the obligations of the assignee in the event of default by the
assignee.
7.2 Notices
All
notices and all other communications provided for in the Agreement shall be in
writing and addressed (i) if to the Company, addressed at its principal office
address or such other address as it may have designated by written notice to the
Executive for purposes hereof, directed to the attention of the CEO with a copy
to the Secretary of the Company and (ii) if to Little Eagle or its Contractors,
at its principal office location written above for the attention of its Managing
Partner, or to such other address as may have designated to the Company in
writing for purposes hereof. Each such notice or other communication
shall be deemed to have been duly given when delivered to the receiving party by
recognized international courier company such as Federal Express to the address
referred to above where such delivery requires signature as proof of delivery by
the receiving party.
7.3 Severability
The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this Agreement,
which shall remain in full force and effect.
Page
7 of II
7.4 Successors: Binding
Agreement
(a) The
Company will require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business
or assets of the Company, by agreement in form and substance reasonably
acceptable to Little Eagle, expressly to assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession had taken place. Failure
of the Company to obtain such agreement prior to the effectiveness of any such
succession shall be a breach of this Agreement.
(b) This
Agreement and all rights of Little Eagle and/or the Contractor hereunder shall
inure to the benefit of and be enforceable by Little Eagle and by the
Contractor's personal or legal representatives, executors, administrators,
successors, heirs, distributes, devisees and legatees. If the
Contractor should die while any amounts would be payable to Little Eagle
hereunder if the Contractor had continued to live, all such amounts, unless
otherwise provided herein, shall be paid, in an amount calculated in accordance
with the terms of this Agreement, to the Contractor's devisee, legatee, or other
designee (as notified to Little Eagle and the Company) or, if there be no such
designee, to the Executive's estate. For the avoidance of doubt the
Company and Little Eagle agrees that such payments will be made in this
manner.
7.5 Amendments and
Waivers
No
provision of this Agreement may be modified, waived or discharged unless such
waiver, modification or discharge is agreed to in writing and signed by Little
Eagle and the Company. No waiver by either party hereto at any time
of any breach by the other party hereto of, or in compliance with, any condition
or provision of this Agreement to be performed by such other party shall be
deemed a waiver of similar or dissimilar provisions or conditions at the same or
at any prior or subsequent time.
7.6 Entire Agreement,
Termination of Other Agreements
This
Agreement is an integration of the parties' agreement and no agreement or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party that are not set forth
expressly in this Agreement. This Agreement supersedes any and all
previous agreements, oral or otherwise, express or implied, with respect to the
subject matter hereof between the parties.
7.7 Governing
Law
The
Parties agree that this Agreement shall for all purposes be construed and
interpreted according to the laws of the Province of Alberta and that the courts
having jurisdiction with respect to any matter or thing arising directly or
indirectly relating to this Agreement, the Schedules attached or the
relationship between the Parties, shall be the courts of said Province, to the
jurisdiction of which courts the Parties by their execution of this Agreement do
hereby submit.
7.8 Counterparts
This
Agreement may be executed in one or more counterparts, each of which shall be
deemed to be an original, but all of which together will constitute one and the
same instrument.
[Signature
page follows]
IN WITNESS WHEREOF, the
parties have executed this Agreement effective as of the date first above
written.
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IMPERIAL
OIL AND GAS, INC.
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BY:
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Name:
Xxxxx Xxxxxx
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Title: Chief
Executive Officer
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LITTLE
EAGLE RESOURCES INC.
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BY:
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XXXX
XXXXXXXXX
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Title: President
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THE
CONTRACTOR
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BY:
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Name:
XXXX
XXXXXXXXX
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