EXECUTIVE EMPLOYMENT AGREEMENT THIS AGREEMENT made as of the 1st day of May, 2006.
THIS
AGREEMENT made as of the 1st
day of
May, 2006.
BETWEEN:
CANWEST
PETROLEUM CORPORATION, a
corporation incorporated under the laws of the State of Colorado, U.S.A.
(hereinafter
referred to as the "Corporation")
-
and
-
T.
XXXXXX XXXXXX,
an
individual residing in the Province of Alberta (hereinafter referred to as
the
"Executive")
WHEREAS
the Corporation wishes to retain the services of the Executive as its
CEO/Chairman;
AND
WHEREAS the Executive wishes to accept employment with the Corporation in
accordance with the terms and conditions of this Executive Employment Agreement
(the "Agreement");
NOW
THEREFORE in consideration of the employment of the Executive by the
Corporation, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as
follows:
ARTICLE
I
DEFINITIONS
AND INTERPRETATION
1.1 In
this
Agreement, the following terms shall have the following meanings:
| (a) |
"Act"
means Alberta Business
Corporation Act, as
amended;
|
| (b) |
"Affiliated"
has the meaning set out in the Act, and an "Affiliate" means one
of two or
more Affiliated bodies corporate;
|
| (c) |
"Business"
means the
exploration and development of North American oil sands and oil shales
and
associated technology by the
Corporation;
|
| (d) |
"Cause"
means, without limiting its interpretation under common law, any
willful
and gross misconduct by the Executive in relation to the performance
of
his duties under this Agreement, or any gross neglect by the Executive
of
his duties under this Agreement;
|
| (e) |
"Change
of Control" means the occurrence of any of the
following:
|
| (i) |
the
purchase or acquisition of any Shares or Convertible Securities by
a
Holder which results in the Holder beneficially owning, or exercising
control or direction over, Shares or Convertible Securities such
that,
assuming the conversion of Convertible Securities beneficially owned
or
over which control or direction is exercised by the Holder, the Holder
would beneficially own or exercise control or direction over Shares
carrying the right to cast more than forty percent (40%) of the votes
attaching to all Shares;
|
| (ii) |
the
amalgamation, consolidation or merger of the Corporation with any
other
corporation pursuant to which the shareholders of the Corporation
immediately prior to such transaction do not own Shares of the successor
or continuing corporation which would entitle them to cast more than
forty
percent (40%) of the votes attaching to shares in the capital of
the
successor or continuing corporation which might be cast to elect
directors
of that corporation;
|
| (iii) |
the
sale, lease or transfer by the Corporation of all or substantially
all of
the assets of the Corporation to any Person other than a Related
Corporation; or
|
| (iv) |
approval
by the shareholders of the Corporation of the liquidation, dissolution
or
winding-up of the Corporation;
|
| (v) |
provided
that, notwithstanding subparagraphs (i) - (iv) above, any amalgamation,
merger or other form of business combination transaction between
the
Corporation and Oil Sands Quest Inc. shall not constitute a Change
of
Control.
|
| (f) |
"Company
Property" includes any materials, tools, equipment, devices, records,
files, data, tapes, computer programs, computer disks, software,
communications, letters, proposals, memoranda, lists, drawings,
blueprints, correspondence, specifications or any other documents
or
property belonging to the Corporation or any Related
Corporation;
|
| (g) |
"Confidential
Information" means any information of a confidential nature which
relates
to the Business of the Corporation or any Related Corporation, including,
without limiting the generality of the foregoing: design and manufacturing
information; trade secrets; technical information; marketing strategies;
sales and pricing policies; financial information; accounting records;
employee information; business, marketing and technical plans; information
relating to the Corporation's business methods, operations and techniques;
research and development information; intellectual property; industrial
designs; computer programs; software; lists of suppliers or other
supplier
information; and lists of present and prospective customer of the
Corporation and other customer information. Notwithstanding the foregoing,
Confidential Information shall not include any information
which:
|
-
2 -
| (i) |
is
or becomes public knowledge through no fault of the Executive (but
only
after the information becomes public knowledge);
|
| (ii) |
is
independently developed by the Executive outside the scope of his
duties
to the Corporation; or
|
| (iii) |
is
or becomes lawfully available to the Executive from a source other
than
the Corporation;
|
| (h) |
"Convertible
Securities" means any securities convertible or exchangeable into
Shares
or carrying the right or obligation to acquire
Shares;
|
| (i) |
"Effective
Date" means the date first written
above;
|
| (j) |
"Holder"
means any Person or group of Persons acting jointly or in concert,
or
associated or Affiliated with any such Person, group of Persons or
any of
such Persons acting jointly or in
concert;
|
| (k) |
"Monthly
Base Salary" means the annual Base Salary paid to the Executive,
divided
by 12;
|
| (l) |
"Notice"
means any Notice given by one party to the other party in accordance
with
Article 16;
|
| (m) |
"Notice
Period" shall be twelve (12) months plus one (1) month for each completed
year of service by the Executive, up to a maximum aggregate of eighteen
(18) months;
|
| (n) |
"Person"
includes an individual, partnership, association, body corporate,
trustee,
executor, administrator or legal representative, and "Persons" means
a
group of more than one Person;
|
| (o) |
"Related
Corporation" means any subsidiary, parent company, division, Affiliate,
predecessor or successor of the
Corporation;
|
| (p) |
"Shares"
means the voting common shares of the Corporation and any other shares
of
the Corporation which have the right to vote in respect of the board
of
directors of the Corporation;
|
| (q) |
"Termination
Date" means the last day actively worked by the Executive for the
Corporation;
|
| (r) |
"Territory"
means North America;
|
-
3 -
| (s) |
"Triggering
Event" means the occurrence or omission of any event or course of
events
which would constitute constructive dismissal of the Executive as
an
employee of the Corporation under the common law and, without limiting
the
generality of the foregoing, shall include the occurrence of any
of the
following without the Executive's consent (except in connection with
the
termination of the Executive’s employment for Cause or upon the death of
the Executive, or Executive's status as a director of the Corporation,
which is addressed by Section 14.1
hereof):
|
| (i) |
a
material change (other than a change which is clearly consistent
with a
promotion) in the Executive's duties, responsibilities, title or
office
with the Corporation, which includes the removal of the Executive
from, or
any failure to re-elect or re-appoint the Executive to, any position
or
office held by the Executive from time to time, without the prior
consent
of the Executive;
|
| (ii) |
any
failure by the Corporation to continue in effect any material benefit,
bonus, profit sharing, incentive, remuneration or compensation plan,
stock
ownership, stock option or stock purchase plan, pension plan or retirement
plan contemplated by this Agreement without providing alternative
rights
or benefits of reasonably equivalent or greater
value;
|
| (iii) |
the
Corporation relocating the Executive to any place other than Calgary
or
London, England without the consent of the Executive, except for
the
requirements of normal business travel; or
|
| (iv) |
any
breach by the Corporation of any provision of this Agreement which
is not
rectified within a reasonable period of time after notice of such
breach
has been provided by the Executive to the
Corporation.
|
1.2 The
headings in this Agreement are inserted for convenience and ease of reference
only, and shall not affect the construction or interpretation of this
Agreement.
1.3 All
words
in this Agreement importing the singular number include the plural, and vice
versa. All words importing gender include the masculine, feminine and neuter
genders.
1.4 All
monetary amounts are in Canadian dollars.
ARTICLE
II
EMPLOYMENT
OF EXECUTIVE
2.1 The
Corporation agrees to employ
the Executive in accordance with the terms and conditions of this Agreement,
and
the Executive agrees to accept such employment.
2.2 The
parties hereto agree that the relationship between the Corporation and the
Executive is that of employer and employee.
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4 -
ARTICLE
III
TERM
OF AGREEMENT
3.1 The
term
of this Agreement shall be for an indefinite period commencing on the Effective
Date (the "Term"), unless earlier terminated by the Corporation or the Executive
pursuant to the terms and conditions of this Agreement.
ARTICLE
IV
DUTIES
OF EXECUTIVE
4.1 The
Executive shall, during the Term of this Agreement:
| (a) |
perform
the duties and responsibilities of the CEO/Chairman of the Corporation,
including all those duties and responsibilities customarily performed
by a
person holding the same or an equivalent position in corporations
of a
similar size to the Corporation, in a similar Business to that of
the
Corporation in Canada and publicly traded in the United States securities
markets, all in accordance with the policies, procedures and rules
established by the Corporation;
|
| (b) |
accept
such other or alternate office or offices or titles to which he may
be
elected or appointed or granted by the board of directors of the
Corporation, provided that performance of the duties and responsibilities
associated with such office or offices shall be consistent with the
duties
provided for in Section 4.1(a). Notwithstanding the formal title
given to
the Executive, and subject only to the ordinary directions customarily
given by a board of directors, the Executive shall have the senior
executive authority in the Corporation and/or any amalgamated corporation;
and
|
| (c) |
devote
the whole of his working time, attention, efforts and skill to the
performance of his employment duties and responsibilities as set
out
herein, and truly and faithfully serve the best interests of the
Corporation at all times.
|
4.2 The
principal executive offices of the Corporation shall be in Calgary and the
Corporation shall have no obligation to maintain executive offices in any other
city. It is understood and agreed by the Corporation that the Executive
maintains residences in Calgary and London, England and divides his time between
both locations, and that the Executive may carry out his duties and
responsibilities on behalf of the Corporation from either location as he deems
appropriate, acting reasonably.
ARTICLE
V
BASE
SALARY
5.1 During
the Term of this Agreement, the Corporation shall pay to the Executive a salary
of Three Hundred Thousand Canadian Funds ($300,000) per annum (the "Base
Salary"), less required statutory deductions, payable in equal semi-monthly
installments or otherwise as agreed by the Corporation and the Executive. The
Executive's Base Salary will be reviewed by the board of directors of the
Corporation from time to time, and may be increased, but not decreased, at
the
discretion of the board of directors.
-
5 -
5.2 The
Corporation shall reimburse the Executive for all reasonable out-of-pocket
expenses incurred in the performance of his employment duties and in accordance
with the applicable policies and guidelines of the Corporation. All payments
or
reimbursements of expenses shall be subject to the submission by the Executive
of appropriate vouchers, bills and receipts. It is expressly acknowledged that
the Executive shall have the right, at his option, to travel business class
on
any airline flight over three (3) hours and that the Corporation shall reimburse
the Executive reasonable travel expenses associated with attendances by the
Executive's partner when she accompanies him on business travel and/or other
business functions.
5.3 Effective
on the first anniversary date of this Agreement, the board of directors of
the
Corporation shall, in good faith, consider the establishment of an individual
pension program for the Executive so as to treat the Executive in a fashion
generally equivalent with the pension treatment provided to Chairmen and/or
Chief Executive Officers of corporations with a comparable market
capitalization, taking into account the Corporation's assets, liabilities and
cash flow.
ARTICLE
VI
INCENTIVE
COMPENSATION
6.1 As
a
material inducement for the Executive to enter into this Agreement, the
Corporation shall pay the Executive a one time signing bonus of One Hundred
Thousand Dollars ($100,000), less required statutory deductions (the "Signing
Bonus"), upon execution and shall pay the Executive a further lump sum of
Seventeen Thousand Dollars ($17,000) less required statutory deductions (the
"Monthly Bonus") within 30 days of the conclusion of each of the first, second
and third months of the Executive's term of service pursuant to this Agreement.
The Signing Bonus and Monthly Bonus shall not be regarded as part of the Base
Salary payable to the Executive pursuant to Article 5.1 hereof and shall be
payable in addition to the Annual Bonus stipulated in Article 6.2
hereof.
6.2 The
Executive shall be eligible to receive an annual incentive bonus of up to two
hundred percent (200%) of the Base Salary (the "Annual Bonus"), on such terms
as
may be determined by the Board of Directors of the Corporation acting in their
sole discretion.
6.3 The
Executive shall be entitled to receive a stock option agreement entitling him
to
purchase four million shares of the Corporation with those options priced on
the
date of the execution of this Agreement and vesting as follows:
| (a) |
1,000,000
on execution of this Agreement;
|
| (b) |
1,000,000
upon the conclusion of any amalgamation or joint venture achieved
between
Canwest Petroleum Corporation and Oilsands Quest Inc.;
|
| (c) |
1,000,000
upon 12 months completed service by the Executive pursuant to this
Agreement;
|
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6 -
| (d) |
1,000,000
upon 24 months completed service by the Executive pursuant to this
Agreement.
|
Said
stock options shall be priced at US$6.75 per share (being fair market value
as
at the time this agreement was entered into), and all such options shall have
an
exercise term of five (5) years from the date of vesting.
6.4 During
the first year of the Executive's employment, if the Corporation issues in
excess of twelve million stock options, the Executive shall receive a further
thirty-three percent (33%) of any stock options issued in excess of twelve
million stock options in total on the same terms and conditions as those stock
options in excess of twelve million total stock options. After the first year
of
employment, any further and additional grants of stock options shall be at
the
discretion of the Board of Directors of the Corporation.
6.5 The
Executive shall enter into the Corporation's standard form stock option
agreement modified so as to give effect to the provisions of this Executive
Employment Agreement. Notwithstanding anything to the contrary in this
Agreement, the Executive hereby agrees that he will not exercise the stock
options and that the Corporation will not be obliged to issue any shares
thereunder, if the exercise of the stock option or the issuance of the shares
shall constitute a violation by the Executive or the Corporation of any
provision of any law or regulation or of any rule of any governmental authority,
regulatory body, automated quotation system or stock exchange. The Corporation
shall in no event be obliged, by any act of the Executive or otherwise, to
issue, register or qualify for resale any securities issuable upon exercise
of
the stock options pursuant to a prospectus or similar document or to take any
other affirmative action in order to cause the exercise of the stock options
or
the issue or resale of the shares issuable pursuant thereto to comply with
any
law or regulation or any rule of any governmental authority, regulatory body
or
stock exchanges, provided that the Corporation shall notify the exchange on
which the Corporation's shares are listed for trading and other appropriate
regulatory bodies in Canada or the United States of the existence of the stock
options and the exercise thereof.
ARTICLE
VII
BENEFITS
7.1 The
Executive shall be entitled to participate in all of the employment benefits
provided by the Corporation for its senior executive employees (the "Benefits"),
subject to the terms and conditions of the applicable benefit plans established
by the Corporation, as may be reasonably amended by the Corporation from time
to
time.
ARTICLE
VIII
VACATION
8.1 The
Executive shall be entitled to an annual paid vacation of six (6) weeks.
Vacation may be taken in such a manner and at such times as the Executive and
the Corporation mutually agree.
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ARTICLE
IX
TERMINATION
BY CORPORATION
9.1 Subject
to Section 9.3 and Section 9.5, the
Corporation shall be entitled to terminate this Agreement and the Executive's
employment at any time, for any reason, upon written Notice to the Executive,
in
which case the Executive shall be entitled to receive the following compensation
from the Corporation, subject to the conditions set out in Section 9.2:
| (a) |
a
lump sum payment equal to the Monthly Base Salary as at the Termination
Date, multiplied by the number of months in the Notice Period;
|
| (b) |
a
further lump sum payment equal to the value of the Executive's benefits
(which value shall be deemed to be the monthly cost to Employer excluding
GST or similar taxes), multiplied by the number of months in the
Notice
Period;
|
| (c) |
a
further lump sum payment equal to the Executive's average Annual
Bonus
during the last three (3) calendar years preceding the Termination
Date
(or, if the Executive has been employed for less than three (3) calendar
years, then for the period of employment preceding termination),
divided
by twelve (12) and multiplied by the number of months in the Notice
Period; and
|
| (d) |
accelerated
vesting of all unvested stock options granted to the Executive pursuant
to
the Article 6.3 hereof;
|
Payment
of the amount set out in this Section 9.1 and the accelerated vesting of stock
options shall represent full and final settlement of any claims by the Executive
against the Corporation or any Related Corporation, arising out of or in any
way
connected to the Executive's employment, or the termination of such employment,
whether at common law or under the provision of any statute or regulation,
or
pursuant to the terms of any agreement between the parties.
9.2 Payment
of the amounts set out in Section 9.1 shall be subject to the following Terms
and conditions:
| (a) |
the
execution by the Executive of a release in favour of the Corporation
and
any Related Corporations;
|
| (b) |
any
withholdings required by law to be made by the Corporation; and
|
| (c) |
the
Executive's right to receive the payments referred to in Section
9.1 shall
not be subject to any duty to mitigate, nor affected by any actual
mitigation by the Executive.
|
9.3 The
Corporation shall be entitled to terminate this Agreement and the Executive's
employment with the Corporation at any time, without notice, pay in lieu of
notice or any other form of severance or termination pay, for Cause.
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8 -
9.4 Notwithstanding
any other term or provision of this Article 9, upon termination of the
Executive’s employment by the Corporation for any reason, the Executive shall
receive any Base Salary and Benefits earned up to the Termination
Date.
9.5 Notwithstanding
Section 9.1, in the event that the Executive's employment is terminated by
the
Corporation for any reason during the three (3) month period immediately
following the Effective Date, the Corporation shall not be required to provide
any compensation to the Executive other than the Signing Bonus and any Base
Salary and Benefits earned by the Executive up to the Termination
Date.
ARTICLE
X
TERMINATION
BY EXECUTIVE
10.1 The
Executive may terminate this Agreement and voluntarily resign from his
employment with the Corporation by providing ninety (90) days'
prior written Notice to the Corporation. Upon voluntary resignation by the
Executive pursuant to this Section 10.1, the Executive shall not be entitled
to
receive any notice or pay in lieu of notice, or any other form of severance
or
termination pay pursuant to this or any other agreement between the
parties.
10.2 Subject
to Section 10.6 and the
conditions set out in Section 10.4, the Executive may terminate his employment
with the Corporation within ninety (90) days of
the
occurrence of either of the following events, and receive the payments set
out
in Section 10.3:
| (a) |
a
Change of Control; or
|
| (b) |
a
Triggering Event.
|
10.3 Upon
the
occurrence of either of the events set out in Section 10.2, and subject to
the
conditions set out in Section 10.4, the Executive shall be entitled to receive
the following compensation from the Corporation:
| (a) |
a
lump sum payment equal to the Monthly Base Salary as at the Termination
Date, multiplied by the number of months in the Notice Period times
1.5;
|
| (b) |
a
further lump sum payment equal to the value of the Executive's benefits
(which value shall be deemed to be the monthly cost to Employer excluding
GST or similar taxes), multiplied by the number of months in the
Notice
Period times 1.5;
|
| (c) |
a
further lump sum payment equal to the Executive's average Annual
Bonus
during the last three (3) calendar years preceding the Termination
Date
(or, if the Executive has been employed for less than three (3) calendar
years, then for the period of employment preceding termination),
divided
by twelve (12) and multiplied by the number of months in the Notice
Period
times 1.5; and
|
| (d) |
the
accelerated vesting of all stock options and other unvested incentive
compensation granted to the Executive and a period of ninety (90)
days
from the Termination Date in which to exercise any unexercised stock
options.
|
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Payment
of the amounts set out in this Section 10.3 and the accelerated vesting of
stock
options and any other incentive compensation shall represent full and final
settlement of any claims by the Executive against the Corporation or any Related
Corporation, arising out of or in any way connected to the Executive's
employment, or the termination of such employment, whether at common law or
under the provision of any statute or regulation, or pursuant to the terms
of
any agreement between the parties.
10.4 Payment
of the amounts set out in Section 10.3 shall be subject to the following terms
and conditions:
| (a) |
receipt
by the Corporation of Notice from the Executive, within ninety (90)
days
of the occurrence of the Change of Control or the Triggering Event
referred to in Section 10.2, setting out the basis on which the
Executive believes that a Change of Control or a Triggering Event
has
occurred;
|
| (b) |
the
execution by the Executive of a release in favour of the Corporation
and
any Related Corporations;
|
| (c) |
the
tendering by the Executive of his resignation from any position he
may
hold as an officer or a director of the Corporation and any Related
Corporations;
|
| (d) |
any
withholdings required by law to be made by the Corporation; and
|
| (e) |
the
Executive's right to receive the payments referred to in Section
10.3
shall not be subject to any duty to mitigate, nor affected by any
actual
mitigation by the Executive.
|
10.5 Notwithstanding
any other term or provision of this Article 10, upon termination of the
Executive’s employment by the Executive for any reason, the Executive shall
receive any Base Salary and Benefits earned up to the Termination
Date.
10.6 Notwithstanding
Section 10.2, in the event that the Executive terminates his employment with
the
Corporation as the result of a Change of Control or a Triggering Event during
the three (3) month period immediately following the Effective Date, the
Corporation shall not be required to provide any compensation to the Executive
other than the Signing Bonus and any Base Salary and Benefits earned by the
Executive up to the Termination Date.
ARTICLE
XI
TERMINATION
UPON DEATH
11.1 This
Agreement shall automatically terminate upon the death of the Executive, in
which case the Executive's estate shall be entitled to receive all Base Salary,
pro-rated Annual Bonus and any other incentive compensation earned by the
Executive up to the Termination Date.
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ARTICLE
XII
CONFIDENTIAL
INFORMATION AND NON-COMPETITION
12.1 The
Executive acknowledges and agrees that in performing the duties and
responsibilities of his employment pursuant to this Agreement, he will occupy
a
position of high fiduciary trust and confidence with the Corporation, pursuant
to which he will develop and acquire wide experience and knowledge with respect
to all aspects of the business carried on by the Corporation and its Related
Corporations, and the manner in which such business is conducted. It is the
express intent and agreement of the Executive and the Corporation that such
knowledge and experience shall be used solely and exclusively in furtherance
of
the business interests of the Corporation and its Related Corporations, and
not
in any manner detrimental to them. The Executive therefore agrees that, so
long
as he is employed by the Corporation pursuant to this Agreement, he shall not
engage in any business activity that competes, whether directly or indirectly,
with the business of the Corporation or its Related Corporations. It
shall
not be a violation of this Section 12.1 for
the
Executive to be involved as an investor or shareholder in securities issued
by
corporations that do not compete directly or indirectly with the business of
the
Corporation, or where such investment constitutes not more than five percent
(5%) of the outstanding securities of a business or corporation whose shares
are
traded on a national securities exchange.
12.2 The
Executive further acknowledges and agrees that in performing the duties and
responsibilities of his employment pursuant to this Agreement, he will become
knowledgeable with respect to a wide variety of Confidential Information which
is the sole and exclusive property of the Corporation or its Related
Corporations, the disclosure or misuse of which would cause irreparable harm
to
the Corporation or its Related Corporations. The Executive therefore agrees
that
during the Term of this Agreement, and following the termination of the
Executive's employment for any reason, he shall treat confidentially all
Confidential Information belonging to the Corporation or its Related
Corporations, and shall not use or disclose the Confidential Information for
any
purpose other than the bona
fide
performance of his duties under this Agreement, except with the prior written
consent of the board of directors of the Corporation, or as required by
law.
12.3 The
Executive further acknowledges and agrees that pursuant to the terms of this
Agreement, he will acquire Company Property which is and shall remain the sole
and exclusive property of the Corporation. Upon termination of the Executive's
employment and this Agreement for any reason, the Executive shall return to
the
Corporation all Company Property, together with any copies or reproductions
thereof, which may have come into the Executive's possession during the course
of or pursuant to this Agreement, and shall delete or destroy all computer
files
on his personal computer which may contain any Confidential Information
belonging to the Corporation, or its Related Corporations.
12.4 The
Executive acknowledges and agrees that the Corporation would suffer irreparable
harm in the event that any Confidential Information or other knowledge and
experience acquired by the Executive in relation to the business of the
Corporation were disclosed to a competitor of the Corporation or used for a
competitive purpose for a reasonable period of time following the termination
of
his employment. Accordingly, the Executive agrees that in the event his
employment with the Corporation is terminated for Cause by the Corporation,
or
in the event that the Executive voluntarily resigns his employment with the
Corporation, neither he nor any employee or agent of the Executive shall, for
a
period of twelve (12) months from the Termination Date:
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11 -
| (a) |
be
engaged, either directly or indirectly in any manner including, without
limitation, as an officer, director, shareholder, owner, partner,
member,
joint venturer, employee, independent contractor, consultant, advisor
or
sales representative, in any business or enterprise which competes
with
the business of the Corporation or any Related Corporation, as such
business was conducted as of the Termination Date, with the exception
that
the Executive may be involved as an investor or shareholder in securities
issued by corporations that do not compete directly or indirectly
with the
business of the Corporation, or where such investment constitutes
not more
than five percent (5%) of the outstanding securities of a business
or
corporation whose shares are traded on a national securities
exchange;
|
| (b) |
solicit,
entice or attempt to solicit or entice, either directly or indirectly,
any
customer or prospective customer of the Corporation or any Related
Corporation as at the Termination Date, to become a customer of any
business or enterprise which competes with the Corporation or any
Related
Corporation for any business as such business was conducted by the
Corporation or any Related Corporation as at the Termination Date;
or
|
| (c) |
solicit
or entice, or attempt to solicit or entice, either directly or indirectly,
any employee of the Corporation or any Related Corporation as at
the
Termination Date, to become employed by or connected with any business
or
enterprise which competes with the Corporation or any Related Corporation
for any business as such business was conducted by the Corporation
or any
Related Corporation as at the Termination Date.
|
The
restrictions set out in this Section 12.4 shall apply only within the Territory
or to any business that directly relates to the Territory.
12.5 In
the
event that the Executive's employment is terminated by the Executive as the
result of a Change of Control or a Triggering Event in accordance with Section
10.2, or by the Corporation for any reason other than Cause, the restrictions
set out in Section 12.4 shall apply for the shorter of the duration of the
Notice Period or, in the event the Agreement is terminated during the three
(3)
month period immediately following the Effective Date, the duration of that
three (3) month period.
12.6 The
Executive acknowledges and agrees that the Corporation will suffer harm in
the
event that the Executive breaches any of the obligations under this Article
12,
and that monetary damages would be difficult to quantify and may be inadequate
to compensate the Corporation for such a breach. Accordingly, the Executive
agrees that in the event of a breach or a threatened breach by the Executive
of
any of the provisions of this Article 12, the Corporation shall be entitled
to
seek, in addition to any other rights, remedies or damages available to the
Corporation at law or in equity, an interim and permanent injunction, in order
to prevent or restrain any such breach or threatened breach by the
Executive.
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12.7 The
Executive hereby agrees that all restrictions contained in this Article
12 are
reasonable and necessary to protect the legitimate proprietary interests of
the
Corporation, and will not unduly restrict his ability to secure comparable
alternative employment following the termination of his employment for any
reason. If any covenant or provision of this Article 12 is determined to be
void
or unenforceable in whole or in part, for any reason, it shall be deemed not
to
affect or impair the validity of any other covenant or provision of this
Agreement, which shall remain in full force and effect.
ARTICLE
XIII
INDEMNIFICATION
AND INSURANCE
13.1 Subject
to the requirements of the Act, and subject to any other limitations imposed
by
Colorado or other law to which the Corporation is subject, the Corporation
shall
indemnify and save harmless the Executive from and against any and all personal
liability which he incurs as a result of performing his employment duties on
behalf of the Corporation, including the payment of reasonable legal fees
incurred by the Executive, with the exception of the following:
| (a) |
any
liability arising from the Executive's gross negligence, fraud or
other
act of willful misfeasance;
|
| (b) |
any
liability that the Corporation is prohibited by law from assuming;
and
|
| (c) |
any
liability of the Employee to the Corporation arising from this Agreement
or the Employee's employment with the
Corporation.
|
13.2 Commencing
with the hiring of the Executive, the Executive shall be authorized to obtain,
and the Corporation shall thereafter maintain, a directors' and officers'
insurance policy in such amounts as may be customary for corporations of a
similar size and business and risk profile as the Corporation in Canada, and
the
Executive shall be entitled to the benefit of such policy of insurance during
the Term of this Agreement and for so long after termination of the Agreement
for any reason as may agreed to by the parties acting reasonably, for the
purpose of providing continued insurance coverage for the benefit of the
Executive for all acts or omissions covered by Section 13.1 that occur prior
to
the Termination Date.
13.3 The
provisions of this Article 13 shall remain in full force and effect
notwithstanding the termination of this Agreement for any reason.
ARTICLE
XIV
BOARD
REPRESENTATION
14.1 Throughout
the course of his employment with the Corporation, the Executive shall be
entitled to maintain a seat on the Board of Directors of the Corporation. If
the
Executive is not permitted to hold such a Board seat, the Executive will be
regarded as terminated by the Corporation pursuant to Article IX hereof "without
cause".
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14.2 The
Corporation shall appoint Xx. Xxxxxx Xxxxxxx (or a suitable alternative proposed
by the Executive and approved by the board of directors of the Corporation),
of
the City of Calgary, in the Province of Alberta, as a member of the board of
directors of the Corporation as soon as reasonably practicable after the
Effective Date hereof, and six months from the Effective Date the board of
directors of the Corporation shall permit the Executive to nominate a further
individual to the board of directors, and the existing board of directors shall
give good faith consideration to the appointment of said individual to the
board
of directors of the Corporation. Subsequent to the appointment of the aforesaid
directors, the board of directors of the Corporation shall continue to nominate
those directors for so long as those directors are willing to remain as
directors of the Corporation subject to the procedures set forth in the
Nominating Committee Charter of the Corporation and any vote of the shareholders
of the Corporation.
ARTICLE
XV
PRESS
RELEASES
15.1 During
the course of his employment, the Executive shall be entitled to review and
approve any and all press releases issued by the Corporation, to the extent
that
such press releases reflect any material event with respect to the
Corporation.
ARTICLE
XVI
NOTICES
16.1 Any
Notice required to be given hereunder may be provided by personal delivery,
by
registered mail or by facsimile to the parties hereto at the following
addresses:
To
the
Corporation:
Xxxxx
000, 000 Xxxx Xxxxxx
Xxxxxxxxx,
Xxxxxxx Xxxxxxxx X0X 0X0
Attention: Xx.
Xxxxxxxx Xxxxxxxxx
Fax: 000-000-0000
To
the
Executive:
#402
The
Grandview
000
- 00
Xxxxxx X.X.
Xxxxxxx,
Xxxxxxx X0X 0X0
Any
Notice, direction or other instrument shall, if delivered, be deemed to have
been given and received on the business day on which it was so delivered, and
if
not a business day, then on the business day next following the day of delivery,
and, if mailed, shall be deemed to have been given and received on the fifth
day
following the day on which it was so mailed, and, if sent by facsimile
transmission, shall be deemed to have been given and received on the next
business day following the day it was sent.
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16.2 Either
party may change its address for Notice in the aforesaid manner.
ARTICLE
XVII
GENERAL
17.1 This
Agreement shall be construed and enforced in accordance with the laws of the
Province of Alberta, and the parties hereby attorn to the jurisdiction of the
Alberta Courts.
Should any provision in this Agreement fail to comply with the requirements
of
the Alberta Employment
Standards Code
or the
Alberta Human
Rights, Citizenship and Multiculturalism Act,
as
amended, or any other applicable legislation, the Agreement shall be interpreted
and construed in accordance with those statutory requirements.
17.2 This
Agreement constitutes the entire agreement between the parties with respect
to
the subject matter hereof, and supercedes and replaces any and all prior
agreements, undertakings, representations or negotiations pertaining to the
subject matter of this Agreement. The parties agree that they have not relied
upon any verbal statements, representations, warranties or undertakings in
order
to enter into this Agreement.
17.3 This
Agreement may not be amended or modified in any way except by written instrument
signed by the parties hereto.
17.4 This
Agreement shall enure to the benefit of and be binding upon the parties hereto,
together with their personal representatives, successors and permitted
assigns.
17.5 This
Agreement is a personal services agreement and may not be assigned by either
party without the prior written consent of the other party.
17.6 The
waiver by either party of any breach of the provisions of this Agreement shall
not operate or be construed as a waiver by that party of any other breach of the
same or any other provision of this Agreement.
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17.7 Should
any provision in this Agreement be found to be invalid, illegal or
unenforceable, the validity, legality or enforceability of the remaining
provisions of the Agreement shall not be affected or impaired thereby in any
way.
IN
WITNESS WHEREOF the parties hereto acknowledge and agree that they have read
and
understand the terms of this Agreement, and that they have had an opportunity
to
seek independent legal advice prior to entering into this Agreement, and that
they have executed this Agreement with full force and effect from the date
first
written above.
|
CANWEST
PETROLEUM CORPORATION
|
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|
Per:
|
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|
Director
|
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|
T.
XXXXXX XXXXXX
Executive
|
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