-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, KlFDs76vsHy5RLrhGf1RzZ8+tRFrI9fVYS/SdkWpoKp1dZAcq0jLr8AZpYq1nCL9 YR/QI0hmHz07hYbbR5+xVg== 0001035704-06-000675.txt : 20060926 0001035704-06-000675.hdr.sgml : 20060926 20060926162605 ACCESSION NUMBER: 0001035704-06-000675 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 20060921 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20060926 DATE AS OF CHANGE: 20060926 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CANWEST PETROLEUM CORP CENTRAL INDEX KEY: 0001096791 STANDARD INDUSTRIAL CLASSIFICATION: MISCELLANEOUS METAL ORES [1090] IRS NUMBER: 980461154 FISCAL YEAR END: 0406 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-32994 FILM NUMBER: 061108944 BUSINESS ADDRESS: STREET 1: 205-707, 7TH AVENUE SW CITY: CALGARY STATE: A0 ZIP: T2P 3H6 BUSINESS PHONE: 4032631623 MAIL ADDRESS: STREET 1: 205-707, 7TH AVENUE SW CITY: CALGARY STATE: A0 ZIP: T2P 3H6 FORMER COMPANY: FORMER CONFORMED NAME: URANIUM POWER CORP DATE OF NAME CHANGE: 19991013 8-K 1 d39927e8vk.htm FORM 8-K e8vk
 

 
 
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) September 21, 2006
CanWest Petroleum Corporation
(Exact name of registrant as specified in its charter)
         
Colorado   0-27659   98-0461154
         
(State or other jurisdiction
of incorporation)
  (Commission
File Number)
  (IRS Employer
Identification No.)
     
205, 707— 7th Avenue S.W. Calgary, Alberta, Canada   T2P 3H6
     
(Address of principal executive offices)   (Zip Code)
Registrant’s telephone number, including area code (403) 263-1623
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
o   Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o   Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o   Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o   Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
 
 

 


 

Item 1.01 Entry into a Material Definitive Agreement.
     On September 21, 2006, Patricia A. Beatch entered into an Executive Employment Agreement with the Company pursuant to which Ms. Beatch will serve as Vice President, Corporate & Strategic Development of the Company, and she will receive a base annual salary of $179,847 ($200,000 Cdn) and a $44,962 ($50,000 Cdn) signing bonus. Ms. Beatch is entitled to participate in the Company’s long and short term incentive plans (including stock option plans) and bonuses from time to time in amounts and on such terms and conditions as may be determined by the Board of Directors in its sole discretion.
     According to the severance terms of the Executive Employment Agreement, upon termination of employment by the Company without cause or upon Triggering Events or a Change of Control (all of which are defined in the agreement along with the capitalized terms used in this paragraph), Ms. Beatch will receive: (i) a lump sum payment equal to the Monthly Base Fee as at the Termination Date, multiplied by the number of months in the Notice Period; (ii) a further lump sum payment equal to the value of Ms. Beatch’s benefits multiplied by the number of months in the Notice Period; and (iii) a further lump sum payment equal to the average annual bonuses during the last three fiscal years preceding the Termination Date (or, if Ms. Beatch has been employed for less than three fiscal years, then for the period of employment preceding the Termination Date), divided by twelve and multiplied by the number of months in the Notice Period. The Notice Period for purposes of the agreement is 18 months plus one month for each completed year of employment by Ms. Beatch (up to a maximum aggregate of 24 months). The agreement may also be terminated at any time by Ms. Beatch, with 60 days’ notice, in which case Ms. Beatch is only entitled to payments of salary and benefits through the date of termination.
Item 5.03 Amendments to Articles of Incorporation or Bylaws.
The following amendments to the Bylaws were effective September 26, 2006:
     Section 2.9, Manner of Acting, was amended to require that, if a quorum is present, the affirmative vote of a majority of the votes cast shall be the act of the shareholders. Section 2.9 previously provided that a majority of the shares represented at a meeting shall be the act of the shareholders.
     Section 2.2, Special Meetings, was amended to require that the President of the Company shall call a special meeting of the shareholders at the request of holders of not less than one-tenth of all votes entitled to be cast at the meeting; provided, however, that the requesting holders must have held their ownership in the Company for at least twelve consecutive months. Section 2.2 previously did not require that the holders requesting a special meeting held their ownership in the Company for twelve consecutive months.

 


 

Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
     
3.1
  Bylaws, as amended.
 
   
10.1
  Executive Employment Agreement with Patricia A. Beatch, dated September 21, 2006.
SIGNATURES
     Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
         
  CanWest Petroleum Corporation
(Registrant)
 
 
Date: September 26, 2006  /s/ Karim Hirji    
  Name:   Karim Hirji   
  Title:   Chief Financial Officer   
 

 


 

EXHIBIT INDEX
     
Exhibit No.   Description
3.1
  Bylaws, as amended.
 
   
10.1
  Executive Employment Agreement with Patricia A. Beatch, dated September 21, 2006.

 

EX-3.1 2 d39927exv3w1.htm BYLAWS exv3w1
 

Exhibit 3.1
BYLAWS
OF
CANWEST PETROLEUM CORPORATION
As Amended Effective September 26, 2006
ARTICLE I
OFFICES
     Section 1.1 Principal Office. The principal office of the corporation shall be located as designated by the Board of Directors, either within or without the State of Colorado. The corporation may have such other offices, either within or without the State of Colorado, as the Board of Directors may designate or as the business of the corporation may require from time to time.
     Section 1.2 Registered Office. The registered office of the corporation, required by the Colorado Business Corporation Act to be maintained in the State of Colorado, may be, but need not be, identical with the principal office if located in the State of Colorado, and the address of the registered office may be changed from time to time by the Board of Directors.
ARTICLE II
SHAREHOLDERS
     Section 2.1 Annual Meeting. The annual meeting of the shareholders shall be held at such time on such day as shall be fixed by the Board of Directors, for the purpose of electing directors and for the transacting of such other business as may come before the meeting. If the election of directors shall not be held on the date designated herein for any annual meeting of the shareholders, or at any adjournment thereof, the Board of Directors shall cause the election to be held at a special meeting of the shareholders as soon thereafter as may be convenient.
     Section 2.2 Special Meetings. Special meetings of the shareholders, for any purpose or purposes, unless otherwise prescribed by statute, may be called by the President or by the Board of Directors, and shall be called by the President at the request of the holders of not less than one-tenth of all votes entitled to be cast at the meeting; provided, however, that the requesting holders must have held their ownership in the corporation for at least twelve consecutive months.
     Section 2.3 Place of Meetings. The Board of Directors may designate any place, either within or without the State of Colorado, as the place of meeting for any annual meeting or for any special meeting called by the Board of Directors. A waiver of notice signed by all shareholders entitled to vote at a meeting may designate any place, either within or without the State of Colorado, as the place for the holding of such meeting. If no designation is made, or if a special meeting be otherwise called, the place of meeting shall be the principal office of the corporation in the State of Colorado.
     Section 2.4 Notice of Meeting. Written notice stating the place, day and hour of the meeting of shareholders and, in case of a special meeting, the purpose or purposes for which the meeting is called, shall, unless otherwise prescribed by

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statute, be delivered not less than ten nor more than 50 days before the date of the meeting, either personally or by mail, by or at the direction of the President, or the Secretary, or the officer or other persons calling the meeting, to each shareholder of record entitled to vote at such meeting; provided, however, that if the authorized shares of the corporation are to be increased, at least 30 days notice shall be given. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail, addressed to the shareholder at his address as it appears on the stock transfer books of the corporation, with postage thereon prepaid.
     Section 2.5 Meeting of all Shareholders. If all of the shareholders shall meet at any time and place, either within or without the State of Colorado, and consent to the holding of a meeting at such time and place, such meeting shall be valid with out call or notice, and at such meeting any corporate action may be taken.
     Section 2.6 Fixing of Record Date. The Board of Directors may fix in advance a date as the record date for any such determination of shareholders, such date in any case to be not more than 50 days and, in case of a meeting of shareholders, not less than ten days prior to the date on which the particular action, requiring such determination of shareholders, is to be taken. If no record date is fixed for the determination of shareholders entitled to notice of or to vote at a meeting of shareholders, or shareholders entitled to receive payment of a dividend, the date on which notice of the meeting is mailed or the date on which the resolution of the Board of Directors declaring such dividend is adopted, as the case may be, shall be the record date for such determination of shareholders. When a determination of shareholders entitled to vote at any meeting of shareholders has been made as provided in this section, such determination shall apply to any adjournment thereof.
     Section 2.7 Voting Record. The officer or agent having charge of the stock transfer books for shares of the corporation shall make, at least ten days before such meeting of shareholders, a complete record of the shareholders entitled to vote at each meeting of shareholders or any adjournment thereof, arranged in alphabetical order, with the address of and the number of shares held by each. The record, for a period of ten days prior to such meeting, shall be kept on file at the principal office of the corporation, whether within or without the State of Colorado, and shall be subject to inspection by any shareholder for any purpose germane to the meeting at any time during usual business hours. Such record shall be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any shareholder during the whole time of the meeting for the purposes thereof.
     The original stock transfer books shall be the prima facie evidence as to the identity of the shareholders entitled to examine the record or transfer books or to vote at any meeting of shareholders.
     Section 2.8 Quorum. One-third of the outstanding shares of the corporation entitled to vote, represented in person or by proxy, shall constitute a quorum at any meeting of shareholders, except as otherwise provided by the Colorado Business Corporation Act and the Articles of Incorporation. In the absence of a quorum at any such meeting, a majority of the shares so represented may adjourn the meeting from time to time for a period not to exceed 60 days. At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the original meeting as originally noticed. The

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shareholders present at a duly organized meeting may continue to transact business until adjournment, notwithstanding the withdrawal of enough shareholders to leave less than a quorum.
     Section 2.9 Manner of Acting. If a quorum is present, the affirmative vote of the majority of the votes cast on any matter submitted for shareholder action shall be the act of the shareholders, unless the vote of a greater proportion or number or voting by classes is otherwise required by statute or by the Articles of Incorporation or these Bylaws.
     Section 2.10 Proxies. At all meetings of shareholders a shareholder may vote in person or by proxy executed in writing by the shareholder or by his duly authorized attorney-in-fact. Such proxy shall be filed with the Secretary of the corporation before or at the time of the meeting. No proxy shall be valid after 11 months from the date of its execution, unless otherwise provided in the proxy. Proxies shall be in such form as shall be required by the Board and as set forth in the notice of meeting and/or proxy or information statement concerning such meeting.
     Section 2.11 Voting of Shares. Unless otherwise provided by these Bylaws or the Articles of Incorporation, each outstanding share entitled to vote shall be entitled to one vote upon each matter submitted to a vote at a meeting of shareholders, and each fractional share shall be entitled to a corresponding fractional vote on each such matter.
     Section 2.12 Voting of Shares by Certain Shareholders. Shares standing in the name of another corporation may be voted by such officer, agent or proxy as the bylaws of such corporation may prescribe, or, in the absence of such provision, as the Board of Directors of such other corporation may determine.
     Shares standing in the name of a deceased person, a minor ward or an incompetent person, may be voted by his administrator, executor, court appointed guardian or conservator, either in person or by proxy without a transfer of such shares into the name of such administrator, executor, court appointed guardian or conservator. Shares standing in the name of a trustee may be voted by him, either in person or by proxy, but no trustee shall be entitled to vote shares held by him without a transfer of such shares into his name.
     Shares standing in the name of a receiver may be voted by such receiver and shares held by or under the control of a receiver may be voted by such receiver without the transfer thereof into his name if authority so to do is contained in an appropriate order of the court by which the receiver was appointed.
     A shareholder whose shares are pledged shall be entitled to vote such shares until the shares have been transferred into the name of the pledgee, and thereafter the pledgee shall be entitled to vote the shares so transferred.
     Neither treasury shares of its own stock belonging to this corporation, nor shares of its own stock held by it in a fiduciary capacity, nor shares of its own stock held by another corporation if the majority of the shares entitled to vote for the election of directors of such other corporation is held by the corporation, may be

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voted, directly or indirectly, at any meeting and shall not be counted in determining the total number of outstanding shares at any given time.
     Redeemable shares which have been called for redemption shall not be entitled to vote on any matter and shall not be deemed outstanding shares on and after the date on which written notice of redemption has been mailed to shareholders and a sum sufficient to redeem such shares has been deposited with a hank or trust company with irrevocable instruction and authority to pay the redemption price to the holders of the shares upon surrender of certificates therefor.
     Shares held of record by a shareholder but which are held for the account of a specified person or persons may be voted by such person or persons, provided the shareholder has certified to the corporation in writing that all or a portion of the shares registered in the name of the shareholder are held for the account of such person or persons, as provided in Article VI. Section 6.6 of these Bylaws.
     Section 2.13 Informal Action by Shareholders. Any action required or permitted to be taken at a meeting of the shareholders may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the shareholders entitled to vote with respect to the subject matter thereof. Signature by facsimile shall be given the same force and effect as original signatures, and any consent in writing may be executed in counterparts.
     Section 2.14 Voting by Ballot. Voting on any question or in any election may be by voice vote unless the presiding officer shall order or any shareholder shall demand that voting be by ballot.
     Section 2.15 No Cumulative Voting. No shareholder shall be permitted to cumulate his votes by giving one candidate as many votes as the number of such directors multiplied by the number of his shares shall equal, or by distributing such votes on the same principle among any number of candidates.
ARTICLE III
BOARD OF DIRECTORS
     Section 3.1 General Powers. The business and affairs of the corporation shall be managed by its Board of Directors.
     Section 3.2 Number, Tenure and Qualifications. The initial number of directors shall be one. The number of directors fixed be these bylaws may be increased or decreased from time to time by resolution of the hoard of directors. The tenure of a director shall not be affected by any decrease or increase in the number of directors so made by the board. Each director shall hold office until the next annual meeting of shareholders and until his successor shall have been elected and qualified.
     Section 3.3 Regular Meetings. A regular meeting of the Board of Directors shall be held without other notice than this bylaw immediately after, and at the same place as, the annual meeting of shareholders. The Board of Directors may provide, by resolution, the time and place, either within or without the State of Colorado, for the holding of additional regular meetings, without other notice than such resolution.

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     Section 3.4 Special Meetings. Special meetings of the Board of Directors may be called by or at the request of the Chairman, if there be one, the President, any of the directors, or by such persons as are authorized to call special meetings under the Colorado Business Corporation Act. The person or persons authorized to call special meetings of the Board of Directors may fix any place, either within or without the State of Colorado, as the place for holding any special meeting of the Board of Directors called by them.
     Section 3.5 Notice. Written notice of any special meeting of directors shall be given by mail to each director at his business address at least three days prior to the meeting or by personal delivery, fax or telegram at least 24 hours prior to the meeting to the business address of each director, or in the event such notice is given on a Saturday, Sunday or holiday, to the residence address of each director, or on such shorter notice as the person or persons calling the meeting, acting in good faith, may deem necessary or appropriate in the circumstances. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail, so addressed, with postage thereon prepaid. If notice is given by fax, such notice shall be deemed to be delivered when confirmation (either by electronic means or by the person receiving the fax) of such fax is received by the sender. If notice be given by telegram, such notice shall be deemed to be delivered when the telegram is delivered to the telegraph company.
     Any director may waive notice of any meeting. The attendance of a director at any meeting shall constitute a waiver of notice of such meeting, except where a director attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board of Directors need be specified in the notice or waiver of notice of such meeting.
     Section 3.6 Quorum. A majority of the directors shall constitute a quorum for the transaction of business at any meeting of the Board of Directors.
     Section 3.7 Manner of Acting. Except as otherwise required by law or by the Articles of Incorporation, the act of the majority of the directors present at a meeting at which a quorum is present shall be an act of the Board of Directors.
     Section 3.8 Action by Directors Without a Meeting. Any action required or permitted to be taken by the Board or Directors or by a committee thereof at a meeting may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the directors or all or the committee members entitled to vote with respect to the subject matter thereof. Signatures may be original signatures or by fax. Signatures on such consent may be made in counterparts.
     Section 3.9 Participation by Electronic Means. Any members of the Board of Directors or any committee designated by such Board may participate in a meeting of the Board of Directors or committee by means of telephone conference or similar communications equipment by which all persons participating in the meeting can hear

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each other at the same time. Such participation shall constitute presence in person at the meeting.
     Section 3.10 Vacancies. Any vacancy occurring in the Board of Directors may be filled by the affirmative vote of a majority of the remaining directors, though less than a quorum of the Board of Directors. A director elected to fill a vacancy shall be elected for the unexpired term of his predecessor in office. Any directorship to be filled by reason of an increase in the number of directors may be filled by election by the Board of Directors for a term of office continuing only until the next election of directors by the shareholders.
     Section 3.11 Resignation. Any director of the corporation may resign at any time by giving written notice to the President or the Secretary of the corporation. The resignation of any director shall take effect upon receipt of notice thereof or at any such later time as shall be specified in such notice; and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. When one or more directors shall resign from the Board, effective at a future date, a majority of the directors then in office, including those who have so resigned, shall have power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective.
     Section 3.12 Removal. Any director or directors of the corporation may be removed at any time, with or without cause, in the manner provided in the Colorado Business Corporation Act.
     Section 3.13 Committees. By resolution adopted by a majority of the Board of Directors, the directors may designate two or more directors to constitute a committee, any of which shall have such authority in the management of the corporation as the Board of Directors shall designate and as shall not be proscribed by the Colorado Business Corporation Act.
     Section 3.14 Compensation. By resolution of the Board of Directors and irrespective of any personal interest of any of the members, each director may be paid his expenses, if any, of attendance at each meeting of the Board of Directors, and may be paid a stated salary as director or a fixed sum for attendance at each meeting of the Board of Directors, or both. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor.
     Section 3.15 Presumption of Assent. A director of the corporation who is present at a meeting of the Board of Directors at which action on any corporate matter is taken shall be presumed to have assented to the action taken unless the dissent shall be entered in the minutes of the meeting or unless he shall file his written dissent to such action with the person acting as the Secretary of the meeting before the adjournment thereof or shall forward such dissent by registered mail to the Secretary of the corporation immediately after the adjournment of the meeting. Such right to dissent shall not apply to a director who voted in favor of such action.

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ARTICLE IV
OFFICERS
     Section 4.1 Number. The officers of the corporation shall be a President, who shall be elected by the Board of Directors. Such other officers and assistant officers as may be deemed necessary may be elected or appointed by the Board of Directors. Any two or more offices may be held by the same person.
     Section 4.2 Election and Term of Office. The officers of the corporation to be elected by the Board of Directors shall be elected annually by the Board of Directors at the first meeting of the Board of Directors held after the annual meeting of the shareholders. If the election of officers shall not be held at such meeting, such election shall be held as soon thereafter as practicable. Each officer shall hold office until his successor shall have been duly elected and shall have qualified or until his death or until he shall resign or shall have been removed in the manner hereinafter provided.
     Section 4.3 Removal. Any officer or agent may be removed by the Board of Directors whenever in its judgment the best interests of the corporation will be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed. Election or appointment of an officer or agent shall not of itself create contract rights.
     Section 4.4 Vacancies. A vacancy in any office because of death, resignation, removal, disqualification or otherwise, may be filled by the Board of Directors for the unexpired portion of the term.
     Section 4.5 Chairman of the Board. If the directors so desire, they may elect a Chairman of the Board from among themselves. The chairman of the board shall preside at all meetings of the stockholders and of the Board of Directors. He shall have such other powers and duties as may be prescribed by the Board of Directors.
     Section 4.6 President. The President shall be the chief executive officer of the corporation and, subject to the control of the Board of Directors, shall in general supervise and control all of the business and affairs of the corporation. He shall, if no Chairman be elected, be the chief executive officer of the corporation and shall preside at all meetings of the shareholders and of the Board of Directors. He may sign, with the Secretary or any other proper officer of the corporation thereunto authorized by the Board of Directors, certificates for shares of the corporation and deeds, mortgages, bonds, contracts or equipment leases entered into in the ordinary course of business, and other contracts or instruments which the Board of Directors has authorized to be executed, except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by these Bylaws to some other officer or agent of the corporation, or shall be required by law to be otherwise signed or executed; and in general shall perform all duties incident to the office of President and such other duties as may be prescribed by the Board of Directors from time to time.
     Section 4.7 The Vice Presidents. If elected or appointed by the Board of Directors, the Vice President (or in the event there be more than one vice president,

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the vice presidents in the order designated at the time of their election, or in the absence of any designation, then in the order of their election) shall, in the absence of the President or in the event of his death or inability to act, perform all duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. Any Vice President may sign, with the Secretary or an Assistant Secretary, certificates for shares of the corporation, and contracts or equipment leases entered into in the ordinary course of business; and shall perform such other duties as from time to time may be assigned to him by the President or by the Board of Directors.
     Section 4.8 The Secretary. If elected or appointed by the Board of Directors, the Secretary shall: (a) keep the minutes of the proceedings of the shareholders and of the Board of Directors in one or more books provided for that purpose; (b) see that all notices are duly given in accordance with the provisions of these Bylaws or as required by law; (c) be custodian of the corporate records and of the seal of the corporation and see that the seal of the corporation is affixed to all documents the execution of which on behalf of the corporation under its seal is duly authorized; (d) keep a register of the post office address of each shareholder which shall be furnished to the Secretary by such shareholder; (e) sign with the President, or a Vice President, certificates for shares of the corporation, the issuance of which shall have been authorized by resolution of the Board of Directors; (f) have general charge of the stock transfer books of the corporation; (g) in general perform all duties incident to the office of Secretary and such other duties as from time to time may be assigned to him by the President or by the Board of Directors.
     Section 4.9 The Treasurer. If elected or appointed by the Board of Directors, the Treasurer shall: (a) have charge and custody of and be responsible for all funds and securities of the corporation; (b) receive and give receipts for monies due and payable to the corporation from any source whatsoever, and deposit all such monies in the name of the corporation in such banks, trust companies or other depositories as shall be selected in accordance with the provisions of Article V of these Bylaws; and (c) in general perform all of the duties incident to the office of Treasurer and such other duties as from time to time may be assigned to him by the President or by the Board of Directors.
     Section 4.10 Assistant Secretaries and Assistant Treasurers. The Assistant Secretaries, when authorized by the Board of Directors, may sign with the President or a Vice President certificates for shares of the corporation the issuance of which shall have been authorized by a resolution of the Board of Directors. The Assistant Secretaries and Assistant Treasurers, in general, shall perform such duties as shall be assigned to them by the Secretary or the Treasurer, respectively, or by the President or the Board of Directors.
     Section 4.11 Bonds. If the Board of Directors by resolution shall so require, any officer or agent of the corporation shall give bond to the corporation in such amount and with such surety as the Board of Directors may deem sufficient, conditioned upon the faithful performance of their respective duties and offices.
     Section 4.12 Salaries. The salaries of the officers shall be fixed from time to time by the Board of Directors and no officer shall be prevented from receiving such

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salary by reason of the fact that he is also a director of the corporation.
ARTICLE V
CONTRACTS, LOANS, CHECKS AND DEPOSITS
     Section 5.1 Contracts. The Board of Directors may authorize any officer or officers, agent or agents, to enter into any contract or execute and deliver any instrument in the name of and on behalf of the corporation, and such authority may be general or confined to specific instances. The President or any Vice-President may enter into contracts or equipment leases entered into in the ordinary course of business.
     Section 5.2 Loans. No loans shall be contracted on behalf of the corporation and no evidences of indebtedness shall be issued in its name unless authorized by a resolution of the Board of Directors. Such authority may be general or confined to specific instances.
     Section 5.3 Checks, Drafts, Etc. All checks, drafts or other orders for the payment of money, notes or other evidence of indebtedness issued in the name of the corporation shall be signed by such officer or officers, agent or agents of the corporation and in such manner as shall from time to time be determined by resolution of the Board of Directors.
     Section 5.4 Deposits. All funds of the corporation not otherwise employed shall be deposited from time to time to the credit of the corporation in such banks, trust companies or other depositories as the Board of Directors may select.
ARTICLE VI
SHARES, CERTIFICATES FOR SHARES AND TRANSFER OF SHARES
     Section 6.1 Regulations. The Board of Directors may make such rules and regulations as it may deem appropriate concerning the issuance, transfer and registration of certificates for shares of the corporation, including the appointment of transfer agents and registrars.
     Section 6.2 Certificates for Shares. Certificates representing shares of the corporation shall be respectively numbered serially for each class of shares, or series thereof, as they are issued, shall be impressed with the corporate seal or a facsimile thereof (if the corporation has a corporate seal), and shall be signed by the President or Vice President and by the Secretary or an Assistant Secretary; provided that such signatures may be by facsimile if the certificate is counter signed by a transfer agent, or registered by a registrar other than the corporation itself or its employee. Each certificate shall state the name of the corporation, the fact that the corporation is organized or incorporated under the laws of the State of Colorado, the name of the person to whom issued, the date of issuance, the class (or series of any class), the number of shares represented thereby and the par value of the shares represented thereby or a statement that such shares are without par value. A statement of the designations, preferences, qualifications, limitations, restrictions and special or relative rights of the shares of each class shall be set forth in full or summarized on the face or back of the certificates which the corporation shall issue, or in lieu

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thereof, the certificate may set forth that such a statement or summary will be furnished to any shareholder upon request without charge. Each certificate shall be otherwise in such form as may be prescribed by the Board of Directors and as shall conform to the rules of any stock exchange on which the shares may be listed.
     The corporation shall not issue certificates representing fractional shares and shall not be obligated to make any transfers creating a fractional interest in a share of stock. The corporation may, but shall not be obligated to, issue scrip in lieu of any fractional shares, such scrip to have terms and conditions specified by the Board of Directors.
     Section 6.3 Cancellation of Certificates. All certificates surrendered to the corporation for transfer shall be canceled and no new certificates shall be issued in lieu thereof until the former certificate for a like number of shares shall have been surrendered and canceled, except as herein provided with respect to lost, stolen or destroyed certificates.
     Section 6.4 Lost, Stolen or Destroyed Certificates. Any shareholder claiming that his certificate for shares is lost, stolen or destroyed may make an affidavit or affirmation of that fact and lodge the same with the Secretary of the corporation, accompanied by a signed application for a new certificate. Thereupon, and upon the giving of a satisfactory bond of indemnity to the corporation not exceeding an amount double the value of the shares as represented by such certificate (the necessity for such bond and the amount required to be determined by the President and Treasurer of the corporation), a new certificate may be issued of the same tenor and representing the same number, class and series of shares as were represented by the certificate alleged to be lost, stolen or destroyed.
     Section 6.5 Transfer of Shares. Subject to the terms of any shareholder agreement relating to the transfer of shares or other transfer restrictions contained in the Articles of Incorporation or authorized therein, shares of the corporation shall be transferable on the books of the corporation by the holder thereof in person or by his duly authorized attorney, upon the surrender and cancellation of a certificate or certificates for a like number of shares. Upon presentation and surrender of a certificate for shares properly endorsed and payment of all taxes therefor, the transferee shall be entitled to a new certificate or certificates in lieu thereof. As against the corporation, a transfer of shares can be made only on the books of the corporation and in the manner hereinabove provided, and the corporation shall be entitled to treat the holder of record of any shares as the owner thereof and shall not be bound to recognize any equitable or other claim to or interest in such shares on the part of any other person, whether or not it shall have express or other notice thereof, save as expressly provided by the statutes of the State of Colorado.
     Section 6.6 Shares Held for the Account of a Specified Person or Persons. The Board of Directors may adopt by resolution a procedure whereby a shareholder of the corporation may certify in writing to the corporation that all or a portion of the shares registered in the name of such shareholder are held for the account of a specified person or persons. The resolution shall set forth:

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  (a)   The classification of shareholder who may certify;
 
  (b)   The purpose or purposes for which the certification may be made;
 
  (c)   The form of certification and information to be contained therein;
 
  (d)   If the certification is with respect to a record date or closing of the stock transfer books, the time after the record date or closing of the stock transfer books within which the certification must be received by the corporation; and
 
  (e)   Such other provisions with respect to the procedure as are deemed necessary or desirable.
     Upon receipt by the corporation of a certification complying with the procedure, the persons specified in the certification shall be deemed, for the purpose or purposes set forth in the certification, to be the holders of record of the number of shares specified in place of the shareholder making the certification.
ARTICLE VII
TAXABLE YEAR
     The taxable year of the corporation shall be determined by resolution of the Board of Directors.
ARTICLE VIII
DIVIDENDS
     The Board of Directors may from time to time declare, and the corporation may pay, dividends on its outstanding shares in the manner and upon the terms and conditions provided by law and its Articles of Incorporation.
ARTICLE IX
CORPORATE SEAL
     The Board of Directors may provide a corporate seal which shall be circular in form and shall have inscribed thereon the name of the corporation and the state of incorporation and the word “Seal.”
ARTICLE X
WAIVER OF NOTICE
     Whenever any notice is required to be given under the provisions of these Bylaws or under the provisions of the Articles of Incorporation or under the provisions of the Colorado Business Corporation Act, or otherwise, a waiver thereof in writing, signed by the person or persons entitled to such notice, whether before or after the event or other circumstance requiring such notice, shall be deemed equivalent to the giving of such notice.

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ARTICLE XI
AMENDMENTS
     These Bylaws may be altered, amended or repealed and new Bylaws may be adopted by a majority of the directors present at any meeting of the Board of Directors of the corporation at which a quorum is present.
ARTICLE XII
EXECUTIVE COMMITTEE
     Section 12.1 Appointment. The Board of Directors by resolution adopted by a majority of the full Board, may designate two or more of its members to constitute an Executive Committee. The designation of such Committee and the delegation thereto of authority shall not operate to relieve the Board of Directors, or any member thereof, of any responsibility imposed by law.
     Section 12.2 Authority. The Executive Committee, when the Board of Directors is not in session, shall have and may exercise all of the authority of the Board of Directors except to the extent, if any, that such authority shall be limited by the resolution appointing the Executive Committee and except also that the Executive Committee shall not have the authority of the Board of Directors in reference to amending the Articles of Incorporation, adopting a plan of merger or consolidation, recommending to the shareholders the sale, lease or other disposition of all or substantially all of the property and assets of the corporation otherwise than in the usual and regular course of its business, recommending to the shareholders a voluntary dissolution of the corporation or a revocation thereof, or amending the Bylaws of the corporation.
     Section 12.3 Tenure and Qualifications. Each member of the Executive Committee shall hold office until the next regular annual meeting of the Board of Directors following his designation and until his successor is designated as a member of the Executive Committee and is elected and qualified.
     Section 12.4 Meetings. Regular meetings of the Executive Committee may be held without notice at such time and places as the Executive Committee may fix from time to time by resolution. Special meetings of the Executive Committee may be called by any member thereof upon not less than one days notice stating the place, date and hour of the meeting, which notice may be written or oral, and if mailed, shall be deemed to be delivered when deposited in the United States mail addressed to the member of the Executive Committee at his business address. Any member of the Executive Committee may waive notice of any meeting and no notice of any meeting need be given to any member thereof who attends in person. The notice of a meeting of the Executive Committee need not state the business proposed to be transacted at the meeting.
     Section 12.5 Quorum. A majority of the members of the Executive Committee shall constitute a quorum for the transaction of business at any meeting thereof, and action of the Executive Committee must be authorized by the affirmative vote of a majority of the members present at a meeting at which a quorum is present.

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     Section 12.6 Action by Executive Committee Without a Meeting. Any action required or permitted to be taken by the Executive Committee at a meeting may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the members entitled to vote with respect to the subject matter thereof.
     Section 12.7 Vacancies. Any vacancy in the Executive Committee may be filled by a resolution adopted by a majority of the full Board of Directors.
     Section 12.8 Resignations and Removal. Any member of the Executive Committee may be removed at any time with or without cause by resolution adopted by a majority of the full Board of Directors. Any member of the Executive Committee may resign from the Executive Committee at any time by giving written notice to the President or Secretary of the corporation, and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
     Section 12.9 Procedure. The Executive Committee shall elect a presiding officer from its members and may fix its own rules of procedure which shall not be inconsistent with these Bylaws. It shall keep regular minutes of its proceedings and report the same to the Board of Directors for its information at the meeting thereof held next after the proceedings shall have been taken.
ARTICLE XIII
EMERGENCY BYLAWS
     The Emergency Bylaws provided in this Article XIII shall be operative during any emergency in the conduct of the business of the corporation resulting from an attack on the United States or any nuclear or atomic disaster, notwithstanding any different provision in the preceding articles of the Bylaws or in the Articles of Incorporation of the corporation or in the Colorado Business Corporation Act. To the extent not inconsistent with the provisions of this article, the Bylaws provided in the preceding articles shall remain in effect during such emergency and upon its termination the Emergency Bylaws shall cease to be operative.
     During any such emergency:
     (a) A meeting of the Board of Directors may be called by any officer or director of the corporation. Notice of the time and place of the meeting shall be given by the person calling the meeting to such of the directors as it may be feasible to reach by any available means of communication. Such notice shall be given at such time in advance of the meeting as circumstances permit in the judgment of the person calling the meetings.
     (b) At any such meeting of the Board of Directors, a quorum shall consist of the number of directors in attendance at such meeting.
     (c) The Board of Directors, either before or during any such emergency, may, effective in the emergency, change the principal office or designate several alternative principal offices or regional offices, or authorize the officers so to do.

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     (d) The Board of Directors, either before or during any such emergency, may provide, and from time to time modify, lines of succession in the event that during such an emergency any or all officers or agents of the corporation shall for any reason be rendered incapable of discharging their duties.
     (e) No officer, director or employee acting in accordance these Emergency Bylaws shall be liable except for willful misconduct.
     (f) These Emergency Bylaws shall be subject to repeal or change by further action of the Board of Directors or by action of the shareholders, but no such repeal or change shall modify the provisions of the next preceding paragraph with regard to action taken prior to the time of such repeal or change. Any amendment of these Emergency Bylaws may make any further or different provision that may be practical and necessary for the circumstances of the emergency.

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EX-10.1 3 d39927exv10w1.htm EXECUTIVE EMPLOYMENT AGREEMENT WITH PATRICIA A. BEATCH, DATED SEPTEMBER 21, 2006 exv10w1
 

Exhibit 10.1
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT made effective as of the 21st day of September, 2006.
BETWEEN:
      CANWEST PETROLEUM CORPORATION, a body corporate incorporated under the laws of the State of Colorado (hereinafter called the “Corporation”)
- and -
      PATRICIA A. BEATCH, an individual resident in Calgary, Alberta (hereinafter called the “Executive”)
WHEREAS the Corporation wishes to employ the Executive as the Vice-President, Corporate & Strategic Development of the Corporation pursuant to the terms of this Agreement;
AND WHEREAS the Executive wishes to accept employment with the Corporation as the Vice-President Corporate & Strategic Development of the Corporation pursuant to the terms of this 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 the Business Corporations Act (Alberta), 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)   “Agreement” means this Executive Employment Agreement;
 
  (d)   “Base Fee” means the amount paid to the Executive annually by the Corporation pursuant to Article 5.1;
 
  (e)   “Board of Directors” means the board of directors of the Corporation;
 
  (f)   “Business” means the business of the Corporation;
 
  (g)   “Cause” means any reason which would entitle the Corporation to terminate the Executive’s employment without notice or payment in lieu of notice at common law, or under the provisions of any other applicable law or regulation and includes, without limiting the generality of the foregoing:

 


 

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  (i)   fraud, misappropriation of the Corporation’s property or funds, embezzlement, malfeasance, misfeasance or nonfeasance in office which is willfully or grossly negligent on the part of the Executive;
 
  (ii)   the willful allowance by the Executive of her duty to the Corporation and her personal interests to come in conflict in a material way in relation to any transaction or matter that is of a substantial nature; or
 
  (iii)   the material breach by the Executive of any of her covenants or obligations under this Agreement including, without limitation, any non-competition, non-solicitation or confidentiality covenants with the Corporation;
  (h)   “Change of Control” means the occurrence of any of the following:
  (i)   the acquisition, by whatever means, by a person (or two or more persons who in such acquisition have acted jointly or in concert or intend to exercise jointly or in concert any voting rights attaching to the securities acquired), directly or indirectly, of the beneficial ownership of such number of voting securities or rights to voting securities of the Corporation, which together with such person’s then owned voting securities and rights to voting securities, if any, represent (assuming the full exercise of such rights to voting securities) more than 30% of the combined voting power of the Corporation’s then outstanding voting securities and such person’s previously owned rights to voting securities; or
 
  (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 voting securities of the successor or continuing corporation which would entitle them to cast more than 30% 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; or
 
  (iii)   the election at a meeting of the Corporation’s shareholders, as directors of the Corporation, of a number of persons, who were not included in the slate for election as directors proposed to the Corporation’s shareholders by the Corporation’s prior Board of Directors, and who would represent a majority of the Board of Directors, or the appointment as directors of the Corporation, of a number of persons which would represent a majority of the Board of Directors, nominated by any holder of voting shares of the Corporation or by any group of holders of voting shares of the Corporation acting jointly or in concert and not approved by the Corporation’s prior Board of Directors;
  (i)   “Company Property” includes any and all proprietary technology, financial, operating and training information, all works of expression and any copyrights in such works, current or potential business contacts and contract development information, patentable inventions, discoveries or trade secrets, and any materials,

 


 

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      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 Corporations;
 
  (j)   “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, trade secrets, technical information, marketing strategies, sales and pricing policies, financial information, business, marketing or technical plans, programs, methods, techniques, concepts, formulas, documentation, intellectual property, software, industrial designs, products, geophysical studies and data, strategic studies, engineering information, customer and supplier lists, shareholder data and personnel information. Notwithstanding the foregoing, Confidential Information shall not include any information which:
  (i)   was in the possession of or known to the Executive prior to joining the Corporation or any related corporation, without any obligation to keep it confidential, before it was disclosed to the Executive by the Corporation; or
 
  (ii)   is or becomes public knowledge through no fault of the Executive; or
 
  (iii)   is independently developed by the Executive outside the scope of his employment with the Corporation; or
 
  (iv)   is disclosed by the Corporation or any related corporation to another Person without any restriction on its use or disclosure; or
 
  (v)   is or becomes lawfully available to the Executive from a source other than the Corporation;
  (k)   “Effective Date” means the date of this Agreement, unless otherwise noted herein or agreed to by the Parties;
 
  (l)   “Monthly Base Fee” means the annual Base Fee paid to the Executive, divided by 12;
 
  (m)   “Notice” means any notice given by one Party to the other Party in accordance with the provisions hereof;
 
  (n)   “Notice Period” shall be 18 months plus one month for each completed year of employment by the Executive (which for the purposes of this agreement shall be calculated from September 5, 2006) up to a maximum aggregate of 24 months;
 
  (o)   “Party” means one or other of the Executive and the Corporation, and “Parties” means the Executive and the Corporation;
 
  (p)   “Permanent Disability” means a mental or physical disability whereby the Executive:

 


 

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  (i)   is unable, due to illness, disease, mental or physical disability or similar cause, to fulfill her obligations as an officer of the Corporation for any consecutive 6 month period, or for any period of 12 or more months (whether consecutive or not) in any consecutive 24 month period; or
 
  (ii)   is declared by a Court of competent jurisdiction to be mentally incompetent or incapable of managing her affairs;
  (q)   “Person” includes an individual, partnership, association, body corporate, trustee, executor, administrator or legal representative, and “Persons” means a group of more than one Person;
 
  (r)   “Related Corporation” means any subsidiary, parent company, division, affiliate, predecessor or successor of the Corporation;
 
  (s)   “Shares” means the 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;
 
  (t)   “Term” means the period during which this Agreement remains in force pursuant to Article III;
 
  (u)   “Termination Date” means the last day actively worked by the Executive for the Corporation; and
 
  (v)   “Triggering Events” means any one or more of the following:
  (i)   a material change (other than those which are clearly consistent with a promotion) in the services, position or duties of the Executive with the Corporation, responsibilities (including, without limitation, the office to which the Executive reports and the personnel which report to the Executive), title or office, which includes any removal of the Executive from or any failure to re-elect or re-appoint the Executive to any such positions or offices, without the prior consent of the Executive;
 
  (ii)   the assignment by the Corporation to the Executive of any duties which are inconsistent with the Executive’s position, duties and responsibilities within the Corporation, without the prior consent of the Executive;
 
  (iii)   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 in which the Executive is participating or entitled to participate or the Corporation taking any action or failing to take any action that would adversely affect the Executive’s participation in or reduce her rights or benefits under or pursuant to any such plan, without in any of the foregoing events providing alternative rights or benefits of reasonably equivalent or greater value, or the Corporation failing to increase or

 


 

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      improve such rights or benefits on a basis consistent with practices in effect with respect to the other senior executives of the Corporation;
  (iv)   the Corporation relocating the Executive to any place other than Calgary, Alberta without the consent of the Executive, except for required travel on the Corporation’s business to an extent substantially consistent with the Executive’s current duties and obligations;
 
  (v)   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;
 
  (vi)   approval by the shareholders of the Corporation of the liquidation, dissolution or winding-up of the Corporation;
 
  (vii)   any breach by the Corporation of any provision of this Agreement which is not rectified in all material respects within a reasonable period of time after notice of such breach has been provided by the Executive to the Corporation; or
 
  (viii)   the failure by the Corporation to obtain, in a form satisfactory to the Executive, an effective assumption of her obligations under this Agreement by any successor 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.
1.5 The word “including”, when following any general statement or term, is not to be construed as limiting the general statement or term to the specific items or matters set forth or to similar items or matters, but rather as permitting the general statement or term to refer to all other items or matters that could reasonably fall within its broadest possible scope.
1.6 A reference to a statute includes all regulations made thereunder, all amendments to the statute or regulations in force from time to time, and any statute or regulation that supplements or supersedes such statute or regulations.
1.7 A reference to an entity includes any successor to that entity.
1.8 A reference to “approval”, “authorization” or “consent” means written approval, authorization or consent.

 


 

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1.9 A reference to an Article is to an Article of this Agreement and the reference to a Section followed by a number or some combination of numbers and letters refers to the section, paragraph, subparagraph, clause or subclause of this Agreement so designated.
ARTICLE II
EMPLOYMENT OF EXECUTIVE
2.1 The Corporation agrees to employ the Executive as the Vice-President, Corporate & Strategic Development of the Corporation and the Executive agrees to accept such employment in accordance with the terms and conditions of this Agreement.
2.2 The Parties agree that the relationship between the Corporation and the Executive is that of employer and employee.
ARTICLE III
TERM OF AGREEMENT
3.1 The Term of this Agreement shall be for an indefinite period commencing on the Effective Date, 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:
  (a)   perform the duties and responsibilities of the Vice-President, Corporate & Strategic Development, including all those duties and responsibilities customarily performed by a person holding the same or an equivalent position, or performing duties similar to those to be performed by the Executive, in corporations of a similar size to the Corporation, in a similar Business to that of the Corporation in Canada and publicly traded on a recognized senior stock exchange, as well as such other related duties and responsibilities as may be assigned to the Executive by the Board of Directors of the Corporation from time to time, provided that such other related duties and responsibilities are consistent with the Executive’s duties as the Vice-President, Corporate & Strategic Development;
 
  (b)   accept such other office or offices to which she may be elected or appointed by the Board of Directors of the Corporation in addition to that of the Vice-President, Corporate & Strategic Development, provided that performance of the duties and responsibilities associated with such office or offices shall be consistent with the duties provided for in Article 4.1(a);
 
  (c)   devote the majority of her working time, attention, efforts and skill to the performance of her duties and responsibilities as set out herein, and truly and faithfully serve the best interests of the Corporation at all times. In particular, and without limiting the generality of the foregoing, the Executive shall not engage in any personal activities or any employment, consulting work, trade or other business activity on her own account or on behalf of any other Person, or as a

 


 

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      material investor or shareholder of any other business or Person that competes, conflicts or interferes with the Business or the performance of the Executive’s duties under this Agreement in any way, whether directly or indirectly. It shall not be a violation of this Article 4.1(c) for the Executive to engage in a voluntary activity or other public service which does not interfere with the Executive’s duties under this Agreement; and
  (d)   notwithstanding paragraph 4.1(c), the Corporation agrees that the Executive may be a member of the board of directors of other companies provided that the holding of such position would not be in direct conflict with the Business and provided that the Board of Directors of the Corporation has granted prior approval to such position.
ARTICLE V
BASE FEE
5.1 During the Term of this Agreement, the Corporation shall pay to the Executive a fee of $200,000 per annum (the “Base Fee”), less required statutory deductions, payable in equal semi-monthly installments or as otherwise determined by the Corporation. The Executive’s Base Fee will be reviewed by the Board of Directors of the Corporation from time to time, and may be increased (but not decreased) at the sole discretion of the Board of Directors, based upon such factors as the Board of Directors in its sole discretion determines are relevant, which factors may include the performance of the Corporation and the employment compensation arrangements of other corporations carrying on a similar business and of a similar size to the Corporation in Canada.
5.2 The Corporation shall reimburse the Executive for all reasonable out-of-pocket expenses incurred in the performance of her duties and in accordance with the applicable policies and procedures of the Corporation, as may be amended by the Corporation at its sole discretion from time to time. 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 her option, when traveling on Business related matters or functions, to travel business class on any airline flight over three (3) hours and that the Corporation shall reimburse the Executive reasonable travel expenses associated therewith.
5.3 The Corporation shall pay to the Executive a one-time “Signing Bonus” amount of $50,000, in addition to the Base Fee, less applicable deductions required by law, promptly after the execution of this Agreement and delivery by the Executive of an original signed copy to the Corporation’s solicitors.
ARTICLE VI
INCENTIVE PAYMENTS
6.1 The Executive shall be entitled to participate in the Corporation’s long and short term incentive plans (including stock option plans) and bonuses from time to time, in amounts and on

 


 

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such terms and conditions as may be determined by the Board of Directors of the Corporation at its sole discretion Any such participation by the Executive shall be subject to the terms and conditions of the relevant plan of the Corporation, as may be amended by the Board of Directors of the Corporation at its sole discretion from time to time, and by the terms and conditions of any applicable agreement between the Executive and the Corporation made pursuant to such plan.
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 (“Benefits”), subject to the terms and conditions of the applicable benefit plans established by the Corporation, as may reasonably amended by the Corporation from time to time.
7.2 The Executive shall be entitled to the use of a vehicle provided by the Corporation. In the event that a vehicle is not made available to the Executive, the Executive shall be entitled to a vehicle allowance in the amount of $1,500 per month.
ARTICLE VIII
VACATION
8.1 The Executive shall be entitled to an annual paid vacation of 30 business days. Vacation may be taken in such a manner and at such times as the Executive and the Corporation mutually agree. In the event that the Executive is unable to take the entitled vacation time, the Corporation and the Executive shall negotiate a suitable arrangement to compensate the Executive.
ARTICLE IX
TERMINATION BY CORPORATION
9.1 Subject to Section 9.3, 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 Corporation shall provide the Executive with the following (subject to the conditions set out in Article 9.2):
  (a)   a lump sum equal to the Monthly Base Fee as at the Termination Date, multiplied by the number of months in the Notice Period;
 
  (b)   a lump sum equal to the value of the Executive’s Benefits (which value shall be deemed to be the monthly cost to the Corporation excluding GST and similar taxes), multiplied by the number of months in the Notice Period; and
 
  (c)   a further lump sum equal to the Executive’s average annual bonuses during the last three fiscal years preceding the Termination Date (or, if the Executive has been employed for less than three fiscal years, then for the period of employment preceding the Termination Date), divided by 12 and multiplied by the number of months in the Notice Period.
Payment of the amounts set out in this Article 9.1 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 with the Corporation or any Related

 


 

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Corporation, 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 Article 9.1 shall be subject to the following conditions:
  (a)   the prior execution by the Executive of a settlement agreement and release and indemnity in favour of the Corporation and any Related Corporations, in a form reasonably acceptable to the Corporation;
 
  (b)   any withholdings or deductions required by law to be made by the Corporation; and
 
  (c)   the Executive’s right to receive payment under Article 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.
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 Fee and Benefits earned up to the Termination Date.
ARTICLE X
TERMINATION BY EXECUTIVE
10.1 The Executive may terminate this Agreement and her employment with the Corporation by providing 60 days’ prior written Notice to the Corporation. Upon termination of her employment pursuant to this Article 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 Notwithstanding the provision in Article 10.1, the Executive may terminate her employment with the Corporation and receive the payments set out in Article 10.3, upon the occurrence of either a Change of Control or a Triggering Event, and subject to the conditions set out in Article 10.4.
10.3 Upon the occurrence of either a Change of Control or a Triggering Event, and subject to the conditions set out in Article 10.4, the Executive shall receive the following:
  (a)   a lump sum equal to the Monthly Base Fee as at the Termination Date, multiplied by the number of months in the Notice Period;
 
  (b)   a lump sum equal to the value of the Executive’s Benefits (which value shall be deemed to be the monthly cost to the Corporation excluding GST and similar taxes), multiplied by the number of months in the Notice Period; and
 
  (c)   a further lump sum equal to the Executive’s average annual bonuses during the last three fiscal years preceding the Termination Date (or, if the Executive has been employed for less than three fiscal years, then for the period of employment

 


 

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      preceding the Termination Date), divided by 12 and multiplied by the number of months in the Notice Period.
Payment of the amounts set out in this Article 10.3 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 with the Corporation or any Related Corporation, 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 Article 10.3 shall be subject to the following terms and conditions:
  (a)   the prior execution by the Executive of a settlement agreement and release and indemnity in favour of the Corporation and any Related Corporations, in a form reasonably acceptable to the Corporation;
 
  (b)   the tendering by the Executive of her resignation from any position she may hold as an officer or a director of the Corporation and any Related Corporations;
 
  (c)   any withholdings or deductions required by law to be made by the Corporation by law;
 
  (d)   the Executive’s right to receive the payments under Article 10.3 shall not be subject to any duty to mitigate, nor affected by any actual mitigation by the Executive; and
 
  (e)   the receipt by the Corporation of written notice from the Executive, within 60 days of the occurrence of a Change of Control or a Triggering Event, as the case may be, setting out the basis on which the Executive believes that a Change of Control or a Triggering Event as the case may be, has occurred.
10.5 The Executive covenants and agrees to provide her full cooperation and assistance, in connection with the termination of her employment upon a Triggering Event, to transfer her duties and responsibilities to a replacement.
10.6 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 Fee and Benefits earned up to the Termination Date.
10.7 Payment under Article 10 shall be made on the later of the date which is 30 calendar days after receipt by the Corporation of the Notice referred to herein and the date which is 60 calendar days after the effective date of the Change of Control or Triggering Event, as the case may be.
ARTICLE XI
TERMINATION UPON DEATH OR PERMANENT DISABILITY
11.1 This Agreement shall automatically terminate upon the death of the Executive.
11.2 In the event that the Executive shall suffer a Permanent Disability, the Corporation may terminate this Agreement and the Executive’s employment by providing at least 30 days prior

 


 

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written Notice to the Executive. Upon termination of the Executive’s employment pursuant to this Article 11.2, the Corporation shall have no further obligation to the Executive, with the exception that the Executive shall continue to be entitled to such insurance benefits as may be provided under any long term disability insurance plan, and to any benefit or entitlement arising from any pension plan of the Corporation.
ARTICLE XII
STOCK OPTIONS
12.1 Upon the termination of the Executive for Cause under Section 9.3 or if the Executive terminates this Agreement pursuant to Section 10.1, only those stock options and other incentive interests held by the Executive (including, for the purposes hereof, those stock options and other incentive interests granted to the Executive by a Related Corporation) that are vested at such Termination Date may be exercised by the Executive in accordance with the terms of the relevant agreement, stock option plan or other incentive plans of the Corporation in effect at the time, as applicable, and the Executive shall have no claim to the acceleration of vesting or the exercise on any stock options and other incentive interests which are not fully vested as at such Termination Date other than under the terms of the relevant agreement, stock option plan or other incentive plans of the Corporation in effect at the time, as applicable. All such remaining unvested stock options and other incentive interests shall terminate, be null and void and of no further force and effect notwithstanding the terms of the relevant agreement, stock option plan or other incentive plans of the Corporation in effect at the time, as applicable.
12.2 Upon termination of the Executive by reason of death or Permanent Disability, only those stock options and other incentive interests held by the Executive (including, for the purposes hereof, those stock options and other incentive interests granted to the Executive by a Related Corporation) which are vested at such Termination Date may be exercised by the Executive pursuant to the terms of the relevant agreement, stock option plan or other incentive plans of the Corporation in effect at the time, as applicable, and the Executive shall have no claim to the acceleration of vesting or to the exercise of any stock options which are not fully vested as at such Termination Date, other than under the terms of the relevant agreement, stock option plan or other incentive plans of the Corporation in effect at the time, as applicable. All such remaining unvested stock options and other incentive interests shall terminate, be null and void and of no further force and effect notwithstanding the terms of the relevant agreement, stock option plan or other incentive plans of the Corporation in effect at the time, as applicable.
12.3 Upon termination of the Executive for any reason other than Cause, voluntary termination by the Executive, death or Permanent Disability, all stock options and other incentive interests held by the Executive (including, for the purposes hereof, those stock options and other incentive interests granted to the Executive by a Related Corporation) shall vest immediately and may be exercised pursuant to the terms of the relevant agreement, stock option plan or other incentive plans of the Corporation in effect at the time, as applicable.
12.4 Notwithstanding subsections 12.2 and 12.3 hereof, the provisions of the Corporation’s stock option plan, the provisions of any stock option agreement entered into between the Corporation (including a Related Corporation) and the Executive, and the provisions of any other incentive plan of the Corporation in effect at the time, the Parties agree that upon termination of

 


 

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the Executive pursuant to Sections 9.1, 10.2, 11.1 or 11.2 hereof, the applicable vested stock options and other incentive interests may be exercised by the Executive until the earlier of (i) the original date of expiry of the stock options and other incentive interests, as the case may be; and (ii) two years after the Termination Date. All stock options and other incentive interests which remain unexercised after this time period shall terminate, be null and void and of no further force and effect notwithstanding the terms of the relevant agreement, stock option plan or other incentive plans of the Corporation in effect at the time, as applicable.
ARTICLE XIII
CONFIDENTIAL INFORMATION AND NON-COMPETITION
13.1 The Executive acknowledges and agrees that in performing the duties and responsibilities of her employment pursuant to this Agreement, she will occupy a position of high fiduciary trust and confidence with the Corporation, pursuant to which she 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 she is engaged by the Corporation pursuant to this Agreement, she shall not engage in any practice or business that competes with the Business of the Corporation or its Related Corporations. It shall not be considered a violation of this Section 13.1 for the Executive to be involved as an investor or shareholder in securities issued by corporations that compete directly or indirectly with the Business, provided that such investment does not constitute more than 5% of the outstanding securities of a business or corporation whose shares trade on a recognized stock exchange.
13.2 The Executive agrees that during the Term, and following the termination of the Executive’s employment for any reason, she shall treat confidentially all Confidential Information belonging to the Corporation or its Related Corporations, and shall not use or disclose the Confidential Information to any unauthorized persons, except with the prior express written consent of the Corporation, or otherwise as required by law.
13.3 The Executive further acknowledges and agrees that pursuant to the terms of this Agreement, she 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 her personal computer which may contain any Confidential Information belonging to the Corporation, or its Related Corporations.
13.4 Notwithstanding the provision of 13.3 and 13.4, the Executive shall be permitted to disclose Confidential Information as required by law, regulation, government body or authority or by court order.

 


 

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13.5 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 her employment. Accordingly, the Executive agrees that in the event her employment with the Corporation is terminated for Cause by the Corporation, or in the event that the Executive voluntarily resigns her employment with the Corporation, neither she nor any employee or agent of the Executive shall, for a period of four (4) months from the Termination Date:
  (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 compete directly or indirectly with the Business, provided that such investment does not constitute more than 5% of the outstanding securities of a business or corporation whose shares trade on a recognized stock 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 13.5 shall apply only within North America or to any business that directly relates to North America.
13.6 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 13, 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 13, 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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13.7 The Executive hereby agrees that all restrictions contained in this Article 13 are reasonable and necessary to protect the legitimate proprietary interests of the Corporation, and will not unduly restrict her ability to secure comparable alternative employment following the termination of his employment for any reason. If any covenant or provision of this Article 13 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.
13.8 The provisions of this Article 13 shall remain in full force and effect notwithstanding the termination of this Agreement for any reason.
ARTICLE XIV
INDEMNIFICATION
14.1 The Corporation covenants, both during and after the Executive’s term of service, to indemnify and hold harmless the Executive and her heirs and legal representatives, to the maximum extent permitted by Colorado law or other law to which the Corporation is subject (provided that the Executive acted honestly and in good faith with a view to the best interests of the Corporation and, in the case of a criminal or administrative action or proceeding that is enforced by monetary penalty, the Executive had reasonable grounds for believing that her conduct was lawful), from and against:
  (a)   all costs, charges, liabilities and expenses whatsoever that the Executive may sustain or incur in or about or in relation to any action, suit or proceeding that is brought, commenced or prosecuted against the Executive for or in respect of any act, deed, matter or thing whatever made, done or permitted or not made, done or permitted by the Executive in or about the execution of his duties as a director or officer of the Corporation or its subsidiaries; and
 
  (b)   all other costs, charges, liabilities and expenses that the Executive may sustain or incur (including, without limitation, all income tax, sales tax and excise tax liabilities resulting from any payment made pursuant to this indemnity) in or about or in relation to the affairs of the Corporation or its subsidiaries or her position as a director or officer of the Corporation or its subsidiaries.
14.2 The Corporation further agrees that any costs, charges and expenses referred to in paragraph 14.1(a) above shall be paid in advance of the final disposition of any such action or proceeding upon receipt by the Corporation of a written undertaking by the Executive to repay such amount if it shall ultimately be determined that the Executive is not entitled to be indemnified in accordance with the terms and conditions of this Indemnity and Colorado law.
14.3 The Corporation further agrees, both during and after the Executive’s term of service, to use its reasonable best efforts to obtain any approval or approvals necessary for such indemnification and to co-operate with the Executive and to provide the Executive with access to any evidence which the Corporation may have or control, which would enable the Executive to make application or obtain any approval or approvals necessary for such indemnification.
14.4 The Corporation shall 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

 


 

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Corporation in Canada, and the Executive shall be entitled to the benefit of such insurance policy during the Term of the Agreement and for so long after termination of the Agreement for any reason as may be 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 Article 14 that occur prior to the Termination Date.
14.5 The provisions of this Article 14 shall remain in full force and effect notwithstanding the termination of this Agreement for any reason.
ARTICLE XV
NOTICES
15.1 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:
 
CanWest Petroleum Corporation
Suite 205, 707 — 7th Avenue S.W.
Calgary, Alberta T2P 3H6
 
Attention: Chairman of the Board
 
Fax: (403) 263-9812

To the Executive:
 
Patricia A. Beatch
10 Hallbrook Drive SW
Calgary, Alberta T2V 3H4
 
e-mail:
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.
15.2 Either Party may change its address for notice in the aforesaid manner.
ARTICLE XVI
GENERAL
16.1 This Agreement shall be construed and enforced in accordance with the laws of the Province of Alberta, and the Parties hereby attorn to the non-exclusive jurisdiction of Alberta Courts. Should provisions in this Agreement fail to comply with the applicable legislation, the Agreement shall be interpreted in accordance with those statutory requirements.

 


 

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16.2 This Agreement and any other agreements expressly incorporated by reference herein, constitute the entire agreement between the Parties with respect to the subject matter hereof, and supercede and replace 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. In the event of a conflict between this Agreement and any other agreement expressly incorporated by reference herein, the terms of this Agreement shall prevail.
16.3 This Agreement may not be amended or modified in any way except by written instrument signed by the Parties hereto.
16.4 This Agreement shall enure to the benefit of and be binding upon the Parties hereto, together with their personal representatives, successors and permitted assigns.
16.5 This Agreement is a personal services agreement and may not be assigned by either Party without the prior written consent of the other Party.
16.6 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.
16.7 The Parties agree to execute and deliver such further and other documents, and perform or cause to be performed such further and other acts and things as may be necessary or desirable in order to give full force and effect to this Agreement.
16.8 The Executive agrees that following the termination of the Executive’s employment with the Corporation for any reason, the Executive shall tender her resignation from any position she may hold as an officer or director of the Corporation or any Related Corporation.
16.9 In the event of a Change of Control, the Corporation will use its reasonable commercial efforts to obtain and pay for directors’ and officers’ liability insurance on a “trailing” or “run off” basis for the Executive, covering claims made prior to or within six years from the date of the Change of Control, such insurance to provide coverage substantially equivalent in scope and coverage to that provided by the Corporation’s directors and officers insurance policy, if any, in effect immediately prior to the Change of Control.
16.10 The Corporation agrees to co-operate with the Executive, to the extent permitted by applicable tax laws, so as to permit the Executive to consider payments hereunder on termination of employment to be retirement benefits.
16.11 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.

 


 

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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
 
       
 
  Per:    
 
       
 
       
 
  Per:    
 
       
     
 
 
 
 
   
Witness
  PATRICIA A. BEATCH

 

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