Exhibit 10.26
THIS AGREEMENT made effective as of the 18th day of July, 1996.
BETWEEN:
LIBERTY TECHNICAL SERVICES LTD., a body corporate, incorporated under the laws
of the Commonwealth of Bahamas, with an office in Lagos, Nigeria
(hereinafter called the "Corporation")
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TEXADA HOLDINGS LTD., of Nassau, Bahamas
(hereinafter called the "Consultant");
CONSULTING SERVICES AGREEMENT
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RECITALS:
A. The Corporation is principally engaged in the business of exploration and
development of oil and gas properties located principally in Nigeria, Africa;
B. The Corporation is desirous of engaging the consulting services and
expertise of the Consultant on the terms, conditions and for the consideration
as hereinafter set forth; and
C. The parties desire to enter into this Agreement to set forth the terms
pursuant to which the Consulting Services will be provided to the Corporation
and the respective rights and obligations of the parties hereto.
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the
premises, the mutual covenants and agreements herein contained and other good
and valuable consideration, the receipt of which is hereby acknowledged, the
parties hereto mutually covenant and agree as follows:
ARTICLE 1
CONTRACT FOR SERVICES
---------------------
1.01 Subject to the prior termination of this Agreement as hereinafter
provided, the Corporation hereby agrees to contract for and retain the services
of the Consultant (hereafter the "Consulting Services") which Consulting
Services are to be provided in accordance with the terms and provisions hereof.
1.02 The Consultant covenants and agrees with the Corporation that it shall,
for the duration of this Agreement provide an individual having satisfactory
professional qualifications and working credentials (the "Named Representative")
to perform the Consulting Services. Where the context so requires, any
reference to the performance of the Consulting Services shall imply that the
Name Representative shall perform such services on the Consultant's behalf. The
Consultant appoints ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ as the Named Representative under this
agreement. The Consultant may not change the Named Representative without the
express consent of the Corporation. The Corporation shall not be responsible or
liable for the payment of any compensation (except as specifically set out
herein) to the Named Representative.
1.03 The Consultant shall be responsible for and shall have such authority as
is consistent with the position of Drilling Manager of the Corporation,
subject to the power, direction and control of the board of directors of the
Corporation (the "Board") or the Operating Committee of the Corporation (the
"Operating Committee").
1.04 Notwithstanding Article 1.03 hereof, the Consulting Services shall
include the services set forth below, and which Consulting Services shall be
provided on the basis of the following terms and conditions:
(a) the Consultant shall control, supervise, manage and direct the
operations of the Corporation, as they relate to the planning,
drilling, testing and completion of oil and gas ▇▇▇▇▇. The duties of
the Consultant shall include the following:
(1) assist in all well planning and implementation activities being
performed by the Corporation;
(2) manage, oversee and where applicable, co-ordinate and control
well construction and related services being provided in respect
of ▇▇▇▇▇ to be drilled by or on behalf of the Corporation;
(3) preparation of all well AFE's including the tracking of such
AFE's during drilling, testing and completion operations;
(4) subject to the prior approval of the Operating Committee,
procurement of equipment and services as reasonably required for
the drilling and testing of ▇▇▇▇▇;
(5) management, supervision and reporting to Operating Committee of
day to day operations respecting the drilling and testing of each
well;
(6) collection and archiving of all data and other information
obtained from each well during drilling and testing operations;
(7) provision of regular drilling and other related reports to the
Operating Committee on a daily basis during drilling and testing
operations or at such other times as may be requested by the
Operating Committee;
(8) liaise and provide assistance to other employees/consultants of
the Corporation as required or directed by the Operating
Committee.
(b) in addition to the duties set forth above, the Consultant shall
assume, obey, implement and execute such duties, directions,
responsibilities, procedures, policies and lawful orders as may be
determined or given by the Board or Operating Committee from time to
time and report results of same as may from time to time be determined
by the Board or Operating Committee;
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(c) the Consultant shall faithfully, honestly and diligently serve the
Corporation and cooperate with the Corporation and utilize maximum
professional skill and care to ensure that all services rendered
hereunder are to the satisfaction of the Corporation, acting
reasonably, and to provide any other services not specifically
mentioned herein, which are in the best interests of the Corporation
are maintained;
(d) the Named Representative's title shall be Drilling Manager;
(e) the Consultant will, subject to the prior approval of the Board or
Operating Committee, arrange for the Named Representative to join in
or participate with organizations, clubs, associations or groups that
may provide good business contacts and learning facilities for the
benefit of the Corporation.
1.05 The Consultant agrees that the Named Represenative will be required to
devote the whole of his time, attention and best efforts to further the business
and interests of the Corporation during the period of this Agreement to the
exclusion of any and all other employment. Nothing herein shall prohibit the
Consultant or the Named Representative from being a shareholder in any
corporation whose common shares are traded publicly on a stock exchange. The
Named Representative shall not be entitled to be a director for any other
company without the prior consent of the Corporation.
1.06 The Consultant acknowledges and agrees that the Consulting Services are
of such a nature that regular business hours may be impossible. The Consultant
understands that it and the Named Representative may be required to provide the
Consulting Services in excess of eight (8) hours per day or five days (5) per
week, and on evenings, weekends and holidays. The Consultant agrees that the
consideration herein set forth shall be in full and complete satisfaction for
the Consulting Services to be provided hereunder, no matter when and how
performed and the Consultant releases the Corporation from any additional
obligation for pay or other compensation, whatsoever which it might have by
reason of any existing or future legislation or otherwise.
1.07 The Consulting Services shall be carried out and performed in Calgary,
Alberta or such other places as may be mutually agreed upon between the
Consultant and the Corporation.
ARTICLE 2
TERM OF CONTRACT
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2.01 Subject to prior termination pursuant to the terms contained in Article
9 hereof, the term of this Agreement respecting the provision of the Consulting
Services shall be for a period of three years commencing September 1, 1996 (the
"Commencement Date") to and including August 31, 1999 (the "Expiry Date"). The
first 90 days following the Commencement Date of this Agreement shall be the
"Probation Term" during which time the Consultant shall be subject to the
termination provisions contained in Article 9.01(a) hereof and such other terms
and conditions set forth throughout this Agreement.
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2.02 This Agreement may be renewed from time to time for a further one (1)
year term or such other term as the parties may agree, upon the written consent
of both parties hereto.
ARTICLE 3
COMPENSATION AND EXPENSES INCURRED BY CONSULTANT
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3.01 The Corporation shall pay the following fees (the "Consulting Fees") to
the Consultant in respect of the provision of the Consulting Services:
(a) the sum of United States dollars Ten Thousand Eight Hundred and Thirty
Four (U.S.$10,834) dollars per month (being U.S.$130,000 per annum)
from the Commencement date until the Expiry Date of this Agreement or
until this Agreement is terminated in accordance with Article 9.01
herein.
The Consulting Fees shall be payable on the last day of each month during the
term hereof.
3.02 In addition to the Consulting Fees, the Consultant or, at its
discretion, the Named Representative shall receive 155,000 incentive stock
options (the "Stock Options") to purchase common shares of Abacan Resource
Corporation ("Abacan"), being the parent company of the Corporation. The Stock
Options are to be issued pursuant to and in accordance with the terms of the
incentive stock option plan of Abacan Resource Corporation (the "Plan") at an
exercise price of Cdn.$5.35 per common share, exercisable on or before five (5)
years from the date hereof. The issuance and exercise price of the Stock
Options shall at all times be subject to the terms of the Plan and applicable
regulatory and stock exchange approval. The Corporation may change the number
or price of the Stock Options issuable herein in accordance with the
requirements of the applicable regulatory authority or stock exchange, and any
such changes shall hereafter be binding upon the Consultant without additional
consideration. Provided that this Agreement has not been previously terminated
by the Corporation in accordance with the terms hereof, the Stock Options
granted hereby shall vest to the Consultant or the Named Representative as
follows:
(a) 55,000 Stock Options on December 1, 1996;
(b) 50,000 Stock Options on August 31, 1998;
(c) 50,000 Stock Options on August 31, 1999.
The Stock Options will be issued in accordance with the usual form of stock
option agreement currently in use by Abacan with such changes as counsel for
Abacan may advise in order to reflect the terms contained herein. The
Corporation acknowledges that in the event of termination of this agreement
pursuant to Article 9.01(d) (death of the Named Representative), all unvested
stock options shall immediately vest to the Consultant or the Named
Representative (as the case may be) on the date of termination.
3.03 In addition to the compensation set forth in Articles 3.01 and 3.02
herein, the Corporation shall pay the Consultant a premium of U.S.$300 per day
for each day the Named Representative is outside the continental United States
and Canada for business purposes. The premium does not apply to days ("Travel
Days") where the Named Representative is en-route by air to the business
destination where the Named Representative elects to travel to the business
destination in business class or equivalent. The premium will be payable in
respect of Travel Days if the Named Representative elects to fly economy class
or its equivalent.
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3.04 In addition to the other compensation set forth herein, the Corporation
shall pay the Consultant a one-time Pension Compensation Payment of U.S. $30,000
on September 1, 1996, in lieu of the Name Representative's loss of pension plan
from his previous employer. The Consultant shall be responsible for and promptly
pay any foreign and domestic taxes that may become payable in respect of the
Pension Compensation Payment.
3.05 In addition to the compensation set forth herein, the Corporation shall
pay for and on behalf of the Consultant the following costs and expenses:
(a) corporate vehicle required for business purposes;
(b) one half of the costs of a term life insurance policy for the Named
Representative in the amount of U.S.$500,000, with a double indemnity
provision in the event of accidental death. The Consultant is to
arrange for the aforesaid life insurance policy, the terms of which
are to be pre-cleared by the Corporation.
3.06 The Consultant shall be responsible for and shall pay any and all
domestic or foreign income or related taxes that may become payable by virtue of
receiving compensation for the provision of the Consulting Services.
3.07 The Consultant and the Named Representative are authorized to incur
reasonable expenses in or about the provision of the Consulting Services
hereunder, including living expenses of the Named Representative while absent
from his city of employment, travel and meeting expenses. Subject to approval,
the Corporation shall reimburse the Consultant for all such business expenses,
provided the Consultant or the Named Representative presents to the Corporation
the following:
(a) A monthly expense report in a form acceptable to the Corporation
completed by the Consultant at the end of each calendar month:
(i) stating the amount of the expenditure;
(ii) the time, place, and designation of the type of entertainment and
travel or other expense incurred by the Consultant;
(iii)the business reason for the expenditure and to the extent
possible, the nature of the business benefit derived or expected
to be derived as a result of the expenditure;
(iv) the names, occupations, addresses, and other information
concerning each person who was entertained, sufficient to
establish a business relationship to the Corporation.
(b) Documentary evidence to be appended to the monthly expense report,
such as a receipt or a paid ▇▇▇▇, that states sufficient information
to establish the amount, date, place, and the essential character of
the expenditure, for each expenditure.
3.08 The Named Representative shall be expected to travel on the
Corporation's behalf as required from time to time. Such travel shall be made
in accordance with the Corporation's domestic and international travel policies.
The Corporation acknowledges that all international travel will be business
class or equivalent and when not available, economy class or its equivalent.
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3.09 In the event the Named Representative is assigned overseas, the
Corporation will reimburse the Consultant for reasonable in-transit expenses for
the Named Representative and his dependants, such as meals, limousine and taxi
fares, tips, en-route accommodation, etc. for the initial assignment overseas,
transfer between foreign assignments and return to the Named Representative's
home of record. Included in the in-transit expenses will be an allowance of one
hundred (100) pounds weight for "unaccompanied air baggage" for the initial
assignment overseas, transfer between foreign assignments and return to the
Consultant's home of record. The Consultant shall provide an expenditure report
to the Corporation in respect of such expenses.
3.10 The Named Representative may be issued a corporate credit card of the
Corporation (the "credit card"). The Consultant confirms that the credit card
is supplied to be used exclusively to cover costs of business travel,
accommodation and meals incurred by the Named Representative while on business
for the Corporation outside of the city or location of his current assignment.
All expenditures incurred on the credit card shall be submitted to the
Corporation along with an expense report prepared by the Consultant or Named
Representative setting forth:
(a) the date and place of expenditure;
(b) the business reason for the trip abroad, including details of work
done while outside city or location of his current assignment;
(c) the names of persons entertained while outside his city or location of
current assignment.
The Consultant agrees that the Named Representative will surrender the corporate
credit card to the Corporation immediately upon request and in any event, at the
Expiry Date of this Agreement.
ARTICLE 4
REVIEW OF COMPENSATION
----------------------
4.01 Subject to renewal as herein provided, the remuneration payable
pursuant to Article 3.01 hereof may be reviewed annually by the Board or
Operating Committee on or before the anniversary date hereof, at which time the
Board shall consider such matters as it may consider relevant and shall
determine, in its absolute discretion, whether to maintain or increase the
annual remuneration payable by the Corporation to the Consultant hereunder. In
the event the Board or Operating Committee elects to amend the Consultant's
remuneration, such an amendment shall not effect the other provisions set forth
in this Agreement.
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ARTICLE 5
INCAPACITYOF NAMED REPRESENTATIVE
---------------------------------
5.01 The Corporation agrees that the Named Representative shall be entitled
to reasonable time from service:
(a) without loss of compensation payable to the Consultant, due to
sickness or injury or other incapacity on the part of the Named
Representative directly associated with the provision of the
Consulting Services to the Corporation;
(b) without compensation being paid to the Consultant due to sickness or
pre-existing injury or medical condition on the part of the Named
Representative on the effective date of this Agreement;
(c) without compensation being paid to the Consultant for a voluntary
medical procedure on the part of the Named Representative, provided
that the prior consent of the Corporation is obtained.
5.02 Nothing herein shall prohibit the Corporation, during of the term of
any such incapacity of the Named Representative referred to herein from
terminating the services of the Consultant in accordance with Article 9.01
herein.
5.03 The Consultant shall, prior to the end of the Probation Term, advise
the Corporation in writing of any pre-existing medical condition, injury or
sickness on the part of the Named Representative that could prevent the Named
Representative from fully and effectively performing the Consulting Services on
behalf of the Consultant for the term of this Agreement.
5.04 The Consultant shall, prior to the end of the Probation Term, require
the Named Representative to submit to a full medical examination with a
practitioner of the Corporation's choice, all at the Corporation's cost.
5.05 The Consultant acknowledges that the Named Representative may, from
time to time and without notice, be required by the Corporation to submit to
tests and related procedures relating to the use of illicit or illegal drugs.
The Consultant shall enter into an agreement with the Named Representative
requiring the Named Representative to voluntarily submit to such tests when
requested in a co-operative manner. The Consultant waives any and all claims or
actions against the Corporation and its affiliates in respect of the
requirement of such tests whatsoever that he might have by reason of any
existing or future legislation and shall obtain a similar waiver from the Named
Representative upon request of the Corporation.
5.06 In the event the Consultant insures the Named Representative through
the Corporation or through a group plan provided by the Corporation for loss of
income as a result of disability and the Consultant receives compensation or
disability income pursuant thereto, then the amount of remuneration which the
Consultant is otherwise entitled to receive hereunder during the period of
illness or incapacity on the part of the Named Representative shall be reduced
by the amount of compensation or disability income paid by such insurer to the
Consultant or Named Representative and the Consultant covenants and agrees that
it shall immediately advise the Corporation from time to time of the receipt of
any such disability income paid by such insurer to the Consultant or the Named
Representative.
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ARTICLE 6
CONFIDENTIAL INFORMATION
------------------------
6.01 The Consultant covenants and agrees that during the term hereof and for
a period of three (3) years thereafter, it will keep in strict confidence
and shall not use, directly or indirectly, for any other purpose other than for
the purpose of providing services hereunder, all knowledge, information (whether
oral or written) and materials obtained or acquired during the course of its
providing services hereunder relating to the Corporation or their business and
affairs. Other than information disclosed or divulged to the Board or Operating
Committee and duly authorized officers and employees of the Corporation, the
Consultant will not disclose, divulge, publish or transfer, or authorize or
permit anyone else to disclose, divulge, publish or transfer or use to his own
advantage any such knowledge, materials, business data or other information
obtained pursuant to this Agreement or which relate in any manner to the
business and affairs of the Corporation, without the prior written consent of
the Corporation, which consent may not be arbitrarily or unreasonably withheld.
The Consultant shall obtain an undertaking of confidentiality from the Named
Representative in the form of Schedule "A" attached.
6.02 The obligation of the Consultant or the Named Representative as
identified in Article 6.01 hereof shall not apply to such knowledge,
information, material or business data obtained pursuant to this Agreement or
relating in any manner to the business affairs of the Corporation which:
(a) was demonstrably known to the Consultant prior to receipt thereof
pursuant to this Agreement;
(b) is available to the public in the form of written publication;
(c) shall have become available to the Consultant or the Named
Representative in good faith from a third party who has a bona fide
right to disclose same; and
(d) that information which is required to be disclosed to any federal,
provincial, state or local government or governmental branch, board,
agency or instrumentality necessary to comply with relevant timely
disclosure laws or regulatory authorities, including stock exchanges
having jurisdiction in respect of securities of the Corporation.
ARTICLE 7
VACATION
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7.01 The Named Representative shall be entitled to one (1) thirty day
(inclusive of business days and weekends) vacation (the "Vacation Period") for
each year throughout the term of this Agreement and any and all renewals
thereof, provided that the Named Representative shall not be entitled to take
any vacation time until following the expiry of the Probation Term. The
Consultant shall continue to receive the Consulting Fees during the Vacation
Term.
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ARTICLE 8
NON-ASSIGNABILITY
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9.01 This contract for Consulting Services and all other rights, benefits,
and privileges herein conferred may not be assigned by the Consultant without
the express written consent of the Corporation.
ARTICLE 9
TERMINATION
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1.30 Notwithstanding the term of this Agreement as set forth in Article 2.01
hereof, this Agreement and the Consulting Services being provided shall be
terminable by the Corporation upon the occurrence of any one of the following
events:
(a) at any time without notice or additional compensation during the
Probation Term;
(b) except in the case of termination for cause, at any time following the
Probation Term, upon the provision to the Consultant of ninety (90)
days written notice (or payment in lieu thereof) of its intention to
terminate this Agreement;
(c) at any time by the Corporation, without notice, or additional
compensation for cause. "Cause" shall, without limiting its meaning in
common law, include the conviction of the Consultant or the Named
Representative for an indictable criminal offence, the failure of a
medical examination or drug test, or the breach by the Consultant or
the Named Representative of any of the covenants or terms of this
Agreement;
(d) immediately upon the death of the Named Representative provided that
the Corporation agrees to pay the Consultant the equivalent of three
month's Consulting Fees;
(e) immediately upon the Consultant or the Named Representative becoming
bankrupt or making an assignment for the benefit of creditors in
general without additional compensation;
(f) immediately upon the Corporation becoming bankrupt or making an
assignment for the benefit of credits in general or ceasing to carry
on business for a period greater than six (6) months; and
(g) immediately upon confirmation of permanent incapacity due to permanent
illness, injury or disability on the part of the Named Representative.
For the purposes hereof, "permanent incapacity" means illness, injury
or disability on the part of the Named Representative incurred while
performing the Consulting Services for the Corporation that in the
opinion of an independent medical expert acceptable to the Consultant
(or his legal personal representative) and the Corporation will
prevent the Named Representative from performing his duties or
providing the Consulting Services on behalf of the Consultant for a
period longer than six (6) consecutive months. Should the Named
Representative become permanently incapacitated and this agreement is
terminated for this reason, the Corporation shall pay the Consultant
the equivalent of three months Consulting Fees. All unvested stock
options shall vest to the Consultant or the Named Representative (as
the case may be) on the termination date in the event of termination
due to permanent incapacity.
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9.02 Subject to Article 10.04, in the event this Agreement is terminated in
accordance with the provisions of Article 9.01 hereof, the Consultant shall not
be entitled to additional remuneration payable by the Corporation hereunder from
and after the date of termination except as specifically provided in Article
9.01 herein. In the event the Named Representative is relocated overseas, the
Corporation shall pay for reasonable in-transit expenses to enable the Named
Representative to return to his home jurisdiction as set out in Article 3.08
upon the termination of this Agreement.
ARTICLE 10
CHANGE OF CONTROL, MERGER, AMALGAMATION, SALE OF ASSETS
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10.01 In the event of:
(a) a change of control of the Corporation or Abacan (as such term is
customarily used in the Securities Act, Alberta) through ownership of
its common shares; or
(b) a change in all or substantially all of the Board of the Corporation
or Abacan; or
(c) the Corporation or Abacan merging, amalgamating or re-organizing with
another corporation that is not an affiliate with the Corporation or
Abacan; or
(d) the sale of all or substantially all of the assets or undertakings of
the Corporation, the Corporation shall provide the Consultant with
Notice of such events (the "Change of Control Event").
10.02 Not later than 30 days following the completion of the Change of
Control Event contemplated in Article 10.01(a), (b) or (c), the Corporation or
its successor shall advise the Consultant whether the Consultant Services are
still required.
10.03 Should notice be provided that the Consultant's services are still
required after the Change of Control Event, the Consultant, Corporation or the
successor shall continue to be bound by the terms of this agreement.
10.04 Should the Change of Control Event be pursuant to Article 10.01(d) or
should notice be provided that the Consultant's services are no longer required
after the Change of Control Event, in accordance with Article 10.02 herein, or
should the services of the Consultant be terminated within 30 days of the Change
of Control Event (other than in accordance with Article 9.01(c)),
(a) the Consultant shall be entitled to a lump sum payment upon
termination of the equivalent of three months Consulting Fees; and
(b) all unvested stock options shall immediately vest to the Consultant or
the Named Representative (as the case may be) effective as of the
Change of Control Event.
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ARTICLE 11
CONFLICT OF INTEREST
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11.01 The Consultant covenants and agrees with the Corporation that during
the term hereof and for a period of three (3) years thereafter, it will not,
either individually or in partnership or jointly or in conjunction with any
person or association, syndicate, as principal, agent, shareholder, or in any
other manner whatsoever carry on or be engaged in or be concerned with or
interested in or advise, lend money to, guarantee the debts or obligations of or
permit its name or any part thereof to be used by any person or persons,
including, without limitation, any individual, firm, association, syndicate,
company, corporation, or other business enterprise, engaged in or concerned with
or interested in any business or any part thereof presently carried on by the
Corporation with respect to their business or any other business at any time
during the term hereof carried on by the Corporation, without the prior written
consent of the Corporation which consent will not be arbitrarily or unreasonably
withheld. The Consultant shall obtain an equivalent undertaking from the Named
Representative in the form of Schedule "B" attached.
11.02 During the period identified in Article 11.01, the Consultant shall not
solicit, engage in, assist or have an interest in or be connected with any
person, firm or corporation soliciting any customer known or ought to be known
to the Consultant to be a customer or business associate of the Corporation.
11.03 During the period identified in Article 11.01, the Consultant shall not
induce, entice or attempt to obtain the withdrawal from the Corporation of
any employee or management personnel either before or after the termination of
this Agreement.
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11.04 If the Corporation ceases to carry on business for a continuous period
of six (6) months or more, then the provisions of Article 6 and Article 11
hereof shall be null and void and shall cease to have any force and effect after
the expiration of the aforesaid period of time.
ARTICLE 12
NOTICES
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12.01 All notices required or allowed to be given under this Agreement shall
be made either personally or by mailing same by prepaid registered post,
addressed as hereinafter set forth or to such other address as may be designated
from time to time by such party in writing, and any notice mailed as
aforesaid shall be deemed to have been received by the addressees thereof on the
fifth business day following the day of mailing:
Corporation: Liberty Technical Services Ltd.
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇-▇▇▇-▇▇▇▇
with a copy to: Abacan Resource Corporation
▇▇▇▇, ▇▇▇ - ▇▇▇ ▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Consultant: Texada Holdings Ltd.
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇-▇▇▇▇
Nassau, Bahamas
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Any party may from time to time change its address for service hereunder on
written notice to the other parties. Any notice may be served by hand delivery
or by mailing same by prepaid, registered post, in a properly addressed
envelope, addressed to the party to whom the notice is to be given at its
address for service hereunder.
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ARTICLE 13
SEVERABILITY
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13.01 Each provision of this Agreement is declared to constitute a separate
and distinct covenant and to be severable from all other such separate and
distinct covenants. If any covenant or provision herein is determined to be
void or unenforceable in whole or in part, it will not be deemed to affect or
impair the enforceability or validity of any other covenant or provision of this
Agreement or any part thereof.
ARTICLE 14
RELIEF
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14.01 The parties to this Agreement recognize that a breach by the
Consultant or Named Representative of any of the covenants herein contained
would result in damages to the Corporation and that the Corporation could not
adequately be compensated for such damages by monetary award. Accordingly, the
Consultant agrees that in the event of any such breach, in addition to all other
remedies available to the Corporation at law or in equity, the Corporation will
be entitled as a matter of right to apply to a court of competent equitable
jurisdiction of such relief by way of restraining order, injunction, decree or
otherwise, as may be appropriate to ensure compliance with the provisions of
this Agreement.
ARTICLE 15
WAIVER
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15.01 The parties agree that all restrictions in this Agreement are necessary
and fundamental to the protection of the Corporation and are reasonable and
valid, and all defences to the strict enforcement of Article 6 and Article 11
hereof by the Corporation are hereby waived by the Consultant.
ARTICLE 16
GENERAL
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16.01 The parties hereto agree that they have expressed herein their entire
understanding and agreement concerning the subject matter of this Agreement and
it is expressly agreed that no implied covenant, condition, term or reservation
or prior representation or warranty shall be read into this Agreement relating
to or concerning the subject matter hereof or any matter or operation provided
for herein.
16.02 The provisions of this Agreement will enure to the benefit of and be
binding upon the successors and assigns of the Corporation and Consultant
respectively.
16.03 Wherever the singular or masculine or neuter is used in this Agreement,
the same shall be construed as meaning the plural or feminine or a body
politic or corporate and vice versa where the context of the parties hereto so
require.
16.04 Time is of the essence hereof.
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16.05 This Agreement shall be construed and interpreted in accordance with
the laws of England and each of the parties hereto hereby irrevocably attorns to
the jurisdiction of the courts of such jurisdiction.
IN WITNESS WHEREOF the parties hereto have executed this Agreement
effective as of the date and year first above written.
LIBERTY TECHNICAL SERVICES LTD.
Per: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------
▇▇▇▇ ▇. Cherwayko, President
TEXADA HOLDINGS LTD.
Per: /s/ ▇▇▇▇▇ ▇▇▇▇
-----------------
▇▇▇▇▇ ▇. ▇▇▇▇
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Schedule "A"
Undertaking of Confidentiality
------------------------------
In consideration of the execution of a Consulting Services Agreement between
Texada Holdings Ltd. (the "Consultant") and Liberty Technical Services Ltd. (the
"Corporation"), the undersigned covenants and agrees with the Consultant and the
Corporation as follows:
1. That during the term of the Consulting Services Agreement and for a
period of three (3) years thereafter, I will keep in strict confidence and shall
not use, directly or indirectly, for any other purpose other than for the
purpose of providing services thereunder, all knowledge, information (whether
oral or written) and materials obtained or acquired during the course of the
provision of the services under the Consulting Services Agreement on behalf of
the Consultant relating to the Corporation or its business and affairs. Other
than information disclosed or divulged to the Board or Operating Committee and
duly authorized officers and employees of the Corporation, I will not disclose,
divulge, publish or transfer, or authorize or permit anyone else to disclose,
divulge, publish or transfer or use to his own advantage any such knowledge,
materials, business data or other information obtained pursuant to this
Agreement or which relate in any manner to the business and affairs of the
Corporation, without the prior written consent of the Corporation, which consent
may not be arbitrarily or unreasonably withheld.
2. My obligation of confidentiality as identified above shall not apply to
such knowledge, information, material or business data obtained pursuant to this
Agreement or relating in any manner to the business affairs of the Corporation
which:
(a) was demonstrably known by me prior to the effective date of the
Consulting Services Agreement;
(b) is available to the public in the form of written publication;
(c) shall have become available to mr in good faith from a third party who
has a bona fide right to disclose same; and
(d) that information which is required to be disclosed to any federal,
provincial, state or local government or governmental branch, board,
agency or instrumentality necessary to comply with relevant timely
disclosure laws or regulatory authorities, including stock exchanges
having jurisdiction in respect of securities of the Corporation.
Dated this ____ day of August, 1996
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Schedule "B"
Undertaking of Non-Competition
------------------------------
In consideration of the execution of a Consulting Services Agreement between
Texada Holdings Ltd. (the "Consultant") and Liberty Technical Services Ltd. (the
"Corporation"), the undersigned covenants and agrees with the Consultant and the
Corporation as follows:
1. That during the term of the Consulting Services Agreement and for a
period of three (3) years thereafter, I will not, either individually or in
partnership or jointly or in conjunction with any person or association,
syndicate, as principal, agent, shareholder, director, officer, employee or in
any other manner whatsoever carry on or be engaged in or be concerned with or
interested in or advise, lend money to, guarantee the debts or obligations of or
permit my name or any part thereof to be used employed by any person or persons,
including, without limitation, any individual, firm, association, syndicate,
company, corporation, or other business enterprise, engaged in or concerned with
or interested in any business or any part thereof presently carried on by the
Corporation with respect to its business or any other business at any time
during the term hereof carried on by the Corporation, without the prior written
consent of the Corporation which consent will not be arbitrarily or unreasonably
withheld.
2. During the period identified above, I shall not solicit, engage in,
assist or have an interest in or be connected with any person, firm or
corporation soliciting any customer known or ought to be known by me to be a
customer or business associate of the Corporation.
3. During the period identified above, I shall not induce, entice or attempt
to obtain the withdrawal from the Corporation of any employee or management
personnel either before or after the termination of this Agreement.
Dated this ____ day of August, 1996
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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