THIS AGREEMENT made as of January 3, 2007 .
Exhibit
10.11
THIS
AGREEMENT made as of January 3, 2007 .
BETWEEN:
Kodiak
Energy, Inc. A body corporate, having an office in the City of Calgary,
in the Province of Alberta.
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(hereinafter
called the “Company”)
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OF
THE FIRST PART
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AND
Xxxxxxx
X. Xxxxxxxxxx, having an office in the City of Calgary, in the Province
of Alberta,
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(hereinafter
called the “Consultant”)
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OF
THE SECOND PART
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WHEREAS
the Company has requested the Consultant to perform certain services as
hereinafter set forth and the Consultant has agreed to perform such services
on
and subject to the terms and conditions hereinafter contained.
NOW
THEREFORE in consideration of the mutual covenants and conditions as Hereinafter
contained, the parties agree as follows:
ARTICLE
I
NATURE
OF WORK
1.1 Subject
to the terms and conditions of this Agreement the Consultant shall provide
its
services and its expertise for the benefit of the Company by providing
independent advisory and consulting services
with
respect to geological and engineering technical activities (the “Services”) and
shall, consistent with direction provided by the management of the Company,
provide such other services as may be agreed upon by the Company and the
Consultant.
1.2 The
Consultant shall cooperate with the Company and cause to be utilized maximum
professional skill, diligence and care to ensure that all work pertaining to
the
provision of services
is scheduled and completed to the satisfaction of the Company and to provide
the
expertise hereinbefore set forth and provide any other services not specifically
mentioned herein, but with by reason of its capability knows to be necessary
to
ensure that the best interests of the Company are maintained.
1.3 Xxxxxxx
X. Xxxxxxxxxx, the principal of the Consultant, (the “Principal”) shall
personally perform all of the Services to be provided by the Consultant
hereunder and the Consultant shall not assign or designate such duties
to any other person without first receiving written consent of the
Company.
1.4 The
Consultant shall not divulge to the Company any confidential data or information
that was obtained by or communicated to the Consultant by other person, firms
or
corporations which
may, from time to time, utilize the services of the Consultant unless such
persons, firms or corporations agree in writing that the Consultant may divulge
such data or information.
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ARTICLE
II
INDEPENDENCE
OF CONSULTANT
2.1 It
is understood and agreed that this Agreement does not create the relationship
of
employer and employee between the Company and the Consultant or its Principal,
or any agents and/or employees of the Consultant, and that the Consultant shall
be considered an independent contractor.
2.2 This
Agreement shall not require the Consultant or its Principal to devote its
exclusive time and attention to the Corporation.
ARTICLE
III
PAYMENT
TO CONSULTANT
3.1 The
Company shall pay the Consultant for its services under this Agreement the
sum
of $85.00 per hour for which services are provided by the Consultant during
the
term of this Agreement.
3.2 The
Consultant shall submit an invoice to the Company on the last day of each
calendar month and payment shall be made by the Company to the Consultant within
15 business days of submission of an invoice.
3.3. The
Company shall reimburse the Consultant for all reasonable out of pocket expenses
incurred by the Consultant in performing its services under this
Agreement. Invoices for expenses chargeable to the Company hereunder
shall be retained pursuant to Clause 3.6 hereof.
3.4 The
compensation paid by the Company to the Consultant includes all applicable
taxes
and will not be changed hereafter as a result of any change in the Consultant’s
tax liabilities, excepting the Goods and Services Tax (the “GST”) which shall be
itemized separately, setting forth the amount of the GST calculated at the
current rate as established by law together with the Consultant’s GST
registration number. The Consultant shall appropriately remit such
amounts so collected as required by law. The Consultant acknowledges
that as it is an independent contractor, the Company will not be withholding
from the fees payable under this Agreement any taxes, federal or provincial,
or
any other statutory payments such as the E.I. and C.P.P.
premiums. The Consultant hereby covenants with the Company that it
will report to such governmental authorities as required by law, all fees paid
to it under this Agreement and that it shall remit to such governmental
authorities as required by law, all taxes and statutory payments payable in
respect to said fees.
3.5 The
Consultant shall be liable for and shall indemnify the Company with respect
to
all taxes, contributions and penalties imposed on the Company by any
governmental or other public authority having jurisdiction with respect to
the
income or profit received by the Consultant pursuant to this Agreement,
including but not limited to, all payment and contribution requirements pursuant
to the Workers Compensation Act (Alberta), Canada Pension Plan Act
(Canada), Employment Insurance Act (Canada) and Income Tax Act (Canada) in
respect or on behalf of employees of the Consultant.
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3.6 The
Consultant shall maintain full and accurate records with respect to all services
performed, fees charged and disbursements incurred, and shall preserve such
records for a period of not less than one (1) year from completion of the
services. The Company or its designate may, at all reasonable times
during normal business hours, inspect all such records as may be necessary
to
verify or audit the calculation of such fees or disbursements.
ARTICLE
IV
CONSULTANT
WILL NOT HIRE EMPLOYEES OF THE COMPANY
4.1 The
Consultant will not hire any employee of the Company to perform any of the
Services covered by this Agreement, without the express written permission
of
the Chief Executive Officer of the Company.
ARTICLE
V
AUTHORITY
OF CONSULTANT AND CONSULTANT’S EMPLOYEES
5.1 The
Consultant agrees that the Consultant, its Principal and any other employee
of
the Consultant, have no authority to in any way conclude any agreement of any
kind on behalf of the Company nor incur any liability on behalf of the Company
otherwise than as expressly permitted herein, and the Consultant agrees that
the
Consultant and its Principal will not represent to any third party that either
the Consultant or its Principal have the power to do so.
ARTICLE
VI
COMPLIANCE
WITH COMPANY’S CODE OF CONDUCT AND POLICIES
6.1 The
Consultant agrees to perform the Services in accordance with the Company’s
present, future, or amended code of conduct, and the Consultant agrees to adhere
to the Company’s present, future or amended policies respecting business ethics
and any legislation from appropriate jurisdictions concerning human
rights.
ARTICLE
VII
PERFORMANCE
OF WORK FOR OTHERS BY CONSULANT DURING THE
PERIOD
OF TIME THAT CONSULTANT PROVIDES THE SERVICES
7.1 The
Consultant, its Principal and any other employees of the Consultant may perform
work for and on behalf of third parties provided that:
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(a)
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the
work performed for third parties is performed outside the time the
Consultant, its Principal, or any other employees of the Consultant
are
required to be available to perform the Services hereunder;
and
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(b)
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the
performance of the work for third parties does not create a conflict
of
interest in respect of the Consultant’s responsibilities and obligations
to the Company pursuant to this Agreement;
and
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(c)
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the
performance of the work for third parties does not detract from the
performance of the Services pursuant to this Agreement;
and
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(d)
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the
Consultant, its Principal and any other employees of the Consultant
shall
not use any Company premises, facility or property for any purpose
other
than the performance of the Services
hereunder.
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ARTICLE
VIII
THE
CONSULTANT’S WARRANTY TO COMPANY RE CONFLICT OF INTEREST
8.1 The
Consultant warrants to the Company that the Consultant and its Principal is
not
presently in a position which represents a conflict of interest by way of any
work performed for any third party presently or prior to the execution of this
Agreement.
ARTICLE
IX
USE
OF COMPANY’S NAME IN PROMOTIONAL ACTIVITIES OF CONSULANT
9.1 The
Consultant agrees not to use the Company’s name in any advertising, promotional
material or publicity release relating to the Services or the result thereof
without the prior written consent of the Company. The Consultant
agrees not to publish or cause to be published any statement or encourage or
approve any advertising or practice that is detrimental or many reasonably
prove
to be detrimental to the name, goodwill, reputation or trademarks of the Company
or any parent, subsidiary or affiliate of the Company. The Consultant
agrees that upon the Company’s request the Consultant shall withdraw any
statement and discontinued any advertisement or practice that the Company
reasonably requests be withdrawn or discontinued or both.
ARTICLE
X
OFFICE
SPACE
10.1 The
Company shall make available to the Consultant, office space and other support
staff in its offices as may be required during the term of this
Agreement.
ARTICLE
XI
TERM
11.1 The
term of this Agreement shall commence on the date hereof and shall continue
thereafter until terminated by either party. Each of the parties
shall have the right to terminate this Agreement at any time upon thirty (30)
days written notice.
11.2 During
the term of this Agreement, the Consultant shall provide its services to the
Company on as “as needed” basis.
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ARTICLE
XII
WAIVER
AND INDEMNITY
12.1 The
Company shall make no claim or demand on behalf of himself, his employees or
agents against the Consultant, its directors, officers, employees or its agents,
for any injury; including injury resulting in death, or for loss or damage
to
property, sustained or suffered by the Company, its agents or employees or
any
other person, firm or corporation which is based upon or arises out of or is
in
any way connected with this Agreement, and hereby waives as against the
consultant its directors, employees and agents all such claims or
demands.
12.2 The
Consultant shall indemnify and save harmless the Company:
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(a)
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from
and against any and all claims, demands, awards, actions and proceedings
by whomsoever made, brought or
prosecuted;
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(b)
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from
and against any and all loss, damage or expense suffered or incurred
by
the company, its officers, employees or
agents
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which
are
based upon, arise out of, or are in any way connected with this Agreement or
anything done or maintained hereunder or anything not done or maintained as
required hereunder and which are attributable to the negligence or wilful
misconduct of the Consultant, except where the same was caused by the Company,
or its officers, employees or agents.
12.3 The
Company shall indemnify and save harmless the Consultant:
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(a)
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from
and against any and all claims, demands, awards, actions and proceedings
by whosoever made, brought or
prosecuted;
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(b)
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from
and against any and all loss, damage or expense suffered or incurred
by
the Consultant, its officers, employees or
agents;
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which
are
based upon, arise out of, or are in any way connected with this Agreement or
anything done or maintained hereunder or anything not done or maintained as
required hereunder and which are attributable to the negligence or willful
misconduct of the Company, except where the same was caused by the Consultant,
or its officers, employees or agents.
12.4 Neither
party is liable for any indirect or consequential damages including loss of
profits or loss of anticipated profits sustained by the other party in the
performance, purported performance or non-performance of this
Agreement.
12.5 The
term of this Article VI shall survive any termination of this
Agreement.
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ARTICLE
XIII
CONFIDENTIAL
DATA
13.1 It
is understood and agreed by the parties that any (i) offers, bids and terms
of
all land or exploration negotiations and agreements relating to the work or
services performed pursuant to this Agreement; and (ii) maps, drawings, data,
letters, communications or any other documentation relating to the Company’s
exploration program shall, at all times, belong to the Company and shall be
useable now or in the future by the Company for any purpose, without payment
or
charge. The Consultant covenants that it will not at any time use or
permit others to use the said offers, bids, terms, maps, drawings, data,
letters, communications or other documentation, or copies thereof, relating
to
the work performed under this Agreement without first receiving the written
consent of the Company.
13.2 The
Consultant shall not divulge any confidential data or information communicated
to it or its employees or agents and shall not, without the prior written
consent of the Company, use any of such data or information for the benefit
of
any other person, firm or corporation where such information was prepared or
partially prepared by the Consultant, or by its agents, employees, or otherwise
or by the Company, and which the Consultant, its agents or employees, may have
in their possession at the time.
13.3 The
Consultant shall obtain the consent of the Company before undertaking any work
for others which in any way conflicts, or could conflict with any work being
done by the Consultant for the Company, or with any project or undertaking
which, to the knowledge of the Consultant, it then being performed or
investigated by the Company. If the Company requests the Consultant
to undertake any work on behalf of the Company which conflicts with work then
being performed by the Consultant for others, the Consultant shall advise the
Company of such conflict, and shall, to the extent reasonably possible,
endeavour to discontinue the said work being performed for others so that the
Consultants will be able to undertake the work requested by the company without
conflict.
13.4 At
the date of termination of this Agreement the Consultant shall remit and
surrender to the Company, without any cost, all the maps, drawings, data,
letters, communications, files containing land related correspondence and other
documentation relating to the work which has been prepared or partially prepared
by the Consultant, or by its agents, employees, or otherwise or provided to
the
Consultant by the Company, and which the Consultant, its agents or employees
may
have in their possession at that time.
13.5 The
Consultant shall use all reasonable security measure and precautions necessary
to protect all documentation subject of this Article VII from loss, theft,
destruction or the like and ensure that its employees, agents, representatives
and affiliates shall be bound by the stipulations herein.
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13.6 In
both Canada and the United States, there are a number of laws and
interpretations of law that prohibit persons from selling or buying securities
on the basis of inside information, which if violated may result in civil
and
criminal liability to the persons and tippees of the person using the inside
information. We expect that you are familiar or will familiarize
yourself with these laws and interpretations and will observe them to the
full
extent applicable to you in relation to your transactions in securities of
the
company, to the extent you are making such transactions, if any.
ARTICLE
XIV
NOTICES
14.1 Any
notices required to be given by either party under this Agreement may be
sufficiently given if mailed by registered letter, prepaid or delivered to
the
parties at their respective address as follows:
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The
Company
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The
Consultant:
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Xxxxxxx
X. Xxxxxxxxxx
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Xxxxx
000, 000 0xx
Xxx.
X.X.
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68
Xxxxxx Wood Close N.W.
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CALGARY,
Alberta
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Xxxxxxx,
Xxxxxxx
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X0X
0X0
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X0X
0X0
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Such
notice shall be deemed to have been given to and received by the addressee
in
the case of mailing, three (3) business days following the mailing thereof,
and
in the case of delivery, the day on which the notice was delivered. A
party may change its address for receipt of notices and other documents by
giving notice thereof to the other party in accordance with the provisions
of
this clause. All payments shall be made to the parties at such of
their respective offices as the parties may respectively designate in
writing.
ARTICLE
XV
GENERAL
15.1 This
Agreement shall be construed under the laws of the Province of
Alberta. If any provision
or provisions of this Agreement be illegal or unenforceable under the laws
of
the Province
of Alberta such provision or provisions shall be considered to be deleted and
the remainder
of this Agreement shall continue in full force and effect.
15.2 Neither
party may assign this Agreement in whole or in part without the prior written
consent of the other except that the Company may assign this Agreement in whole
or in part to its parent, subsidiary or any company or partnership with which
it
is affiliated.
15.3 The
Agreement shall enure to the benefit of and be finding upon the parties, its
successors and assigns.
15.4 The
headings herein are for the convenience of reference only.
15.5 Time
shall be of the essence hereof.
15.6 This
Agreement supersedes any other agreement between the parties relating to the
matters within.
15.7 No
amendment of this Agreement shall be binding upon any party unless evidenced
in
writing executed by the party.
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15.8 Whenever
the singular or masculine is used in this Agreement it shall be construed
as if
the plural, feminine or neuter (as the case may be) has been used where the
context so permits or requires, and the rest of the sentence, paragraph or
agreement as the case may be, shall be constituted as if the grammatical
changes
hereby rendered necessary had been made.
Agreement
may only be amended by written agreement of both parties
16.0 GOVERNING
LAW
This
Agreement shall be governed by and construed in accordance with the laws of
the
Province of Alberta, Canada.
This
Agreement shall be governed by and construed in accordance with the laws of
the
Province of Alberta, Canada.
17.0 INTERPRETATION
18.0 Definitions
In
this
Agreement
Administrative
Procedures means the administrative procedures set out in Schedule C
(Administrative Procedures).
Area
of Mutual Interest has the meaning set out in the Confidentiality
Agreement.
Business
Day means any day of the week except Saturday or Sunday or any public
holiday in Canada.
Canadian
Dollars and $ denote the lawful currency of
Canada.
Compensation
Terms means the terms set out in Schedule B (Compensation Terms) on
which the Contractor will be compensated in respect of the
Services.
Confidentiality
Agreement means the confidentiality agreement between the Company and
the Contractor dated on or around the Effective Date.
Effective
Date means the date on which the last party executes this
Agreement.
Job
Description means the job description set out in Schedule D (Job
Description).
Scope
of Work means the scope of work set out in Schedule A (Scope of
Work).
Services
has the meaning given to that term in paragraph 1 of the Scope of
Work.
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Attachments:
Schedule
A: Scope of Work
Schedule
B: Compensation Terms
Schedule
C: Administrative Procedures
Schedule
D: Job Description
IN
WITNESS WHEREOF the parties have executed this Agreement as of the day and
year
first above written.
For
and
on behalf of Kodiak Energy Inc.
At
the
city of Calgary, Alberta on 3rd day of January, 2007
Signature: s/
X. X.
Xxxxx Witness:
s/ Xxxxxxx Xxxxx
Name:
Xxxxxxx X. Xxxxx
Title: President
For
and
on behalf of Xxxxxxx X. Xxxxxxxxxx
At
the
city of Calgary, Alberta on 3rd day of
January,
2007
Signature: s/W.E.
Brimacombe Witness: Xxxxxxx
Xxxxx
Name:
Xxxxxxx X. Xxxxxxxxxx
Title: __________________________________
