Exhibit 10.10
AGREEMENT
THIS AGREEMENT made effective as of the 14th day of April,
1998, by and between Geoteck International, Inc., a Nevada corporation (the
"Corporation"), Wareham Management Ltd. ("WML"), and Xxxxxx Xxxxxxx Xxxxxx
Xxxxxxx ("Wareham").
W I T N E S S E T H:
WHEREAS, Wareham is the President of WML;
WHEREAS, WML is a consultant to the Corporation pursuant to a
consulting agreement (the "Consulting Agreement");
WHEREAS, in lieu of such consulting relationship, (a) the
Corporation desires to engage Wareham as the Chief Financial Officer, Treasurer,
and Secretary of the Corporation, (b) WML desires to lend out to the Corporation
the services of Wareham, and (c) Wareham desires to serve as the Chief Financial
Officer, Treasurer, and Secretary of the Corporation, upon the terms and
conditions hereinafter set forth;
NOW THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, the parties, intending to be
legally bound, agree as follows:
1. Termination of Consulting Agreement; Term.
(a) WML and the Corporation hereby terminate the
Consulting Agreement.
(b) Subject to the terms and conditions of this Agreement, WML
hereby agrees to loan out the services of Wareham to the Corporation, the
Corporation hereby engages Wareham as Chief Financial Officer, Treasurer, and
Secretary, and Wareham hereby agrees to serve the Corporation as Chief Financial
Officer, Treasurer, and Secretary for the period commencing on the date hereof
(the "Effective Date") and ending on the second anniversary of the Effective
Date (the "Engagement Period"), unless sooner terminated as hereinafter
provided.
2. Scope of Wareham's Duties. Wareham shall serve as Chief Financial
Officer, Treasurer, and Secretary of the Corporation, subject to the direction
and control of the Board of Directors of the Corporation (the "Board"). In such
capacity, Wareham shall have the customary powers, responsibilities and
authority of chief financial officers, secretaries and treasurers of
corporations of the size, type, and nature of the Corporation as it exists from
time to time. Wareham shall undertake such other duties as the Board from time
to time shall reasonably designate, including, without limitation, serving as a
consultant to affiliates of the Corporation and serving on the Board.
3. Time to be Devoted to by Wareham. Wareham shall devote so much of
his professional and business time, attention, and energies to his duties and
responsibilities hereunder as is reasonable to insure the Corporation's proper
conduct. In performing such
services, Wareham shall use his best efforts to promote the interests of the
Corporation pursuant to and in accordance with reasonable business policies and
procedures, as fixed from time to time by the Board. Wareham covenants and
agrees that he will faithfully adhere to and fulfill such policies, consistent
with this Agreement, as are established from time to time by the Board. Nothing
contained herein shall prevent or be construed as preventing Wareham from
holding or purchasing up to five percent (5%) of any class of stock or
securities of a corporation which is listed on a national securities exchange or
regularly traded in the over-the-counter market, or making other investments or
participating in business ventures not involving decommissioning, installing,
and/or transporting offshore oil or gas structures, provided that such
investments and business ventures do not conflict with his duties or obligations
to the Corporation as provided in this Agreement.
4. Fee. As total consideration for lending out the services of Wareham
and the rendering of such services during the Engagement Period, WML shall
receive a fee of Thirty Two Thousand Two Hundred Fifty Dollars ($32,100) per
annum (inclusive of a 7.0% Canadian Goods and Services Tax, the "Fee"), which
shall be paid semi-monthly in arrears or on such other basis as Corporation and
WML shall agree.
5. Reimbursement of Expenses. The Corporation shall reimburse Wareham
for all reasonable expenses incurred in connection with the services to be
rendered hereunder, including expenses for travel, entertainment, and similar
expenses incurred by Wareham on the Corporation's behalf; provided, however, no
such reimbursement shall be made except upon the presentation of an itemized
account or other evidence of those expenses for which reimbursement then is
being sought, all in form reasonably satisfactory to the Corporation.
6. Termination. This Agreement shall terminate upon Wareham's
resignation or death, and may be terminated by the Board on account of Wareham's
Disability (as defined below), for Cause (as defined below), or without Cause.
(a) If Wareham dies during the term of this Agreement, the
Corporation shall be obligated to pay to WML all earned but unpaid Fees through
the date of his death.
(b) If Wareham shall become physically or mentally disabled
("Disability") during the term of this Agreement such that (i) in the Board's
good faith judgement, he is permanently incapable of properly performing each of
the duties customarily performed by him hereunder, or (ii) such Disability lasts
for a period of 60 consecutive days or for 90 days in any six-month period and
the Corporation elects to treat such Disability as being permanent in nature,
then the Corporation shall be obligated to pay to WML all earned but unpaid Fees
due to WML hereunder through the date of such termination.
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(c) If Wareham is terminated by the Corporation without Cause,
then, provided that Wareham has not breached the provisions of Sections 8, 9, or
10 hereof, WML shall be entitled to receive the Fee in equal monthly
installments for the twelve-month period from the date of such termination or
for the remainder of the Engagement Period, whichever is shorter.
(d) If Wareham is terminated for Cause or Wareham resigns, WML
shall be entitled to receive the Fee only through the date of termination.
(e) As used herein, "Cause" shall mean:
i) the willful failure by Wareham to
substantially perform his duties hereunder
(including, without limitation, Wareham's
refusal to carry out the directives of the
Board), for reasons other than death or
Disability;
ii) a material breach of this Agreement by
Wareham (including, without limitation, the
breach of any provision of Sections 8 and/or
9 hereof);
iii) the willful engaging by Wareham in
misconduct materially injurious to the
Corporation;
iv) a breach of Wareham's duty of loyalty to the
Corporation or any act of dishonesty or
fraud with respect to the Corporation; or
v) the commission of a felony, a crime
involving moral turpitude or other act
causing material harm to the Corporation's
standing and reputation.
7. Disclosure of Information.
(a) All memoranda, notes, records, and other documents made or
compiled by Wareham or made available to Wareham during the term of this
Agreement concerning the business of the Corporation or any affiliate of the
Corporation (for purposes of this Section 8, the "Corporation"), shall be the
Corporation's property and shall be delivered to the Corporation on the
termination of this Agreement. Wareham shall not use for himself or others, or
divulge to others, any proprietary or confidential information of the
Corporation obtained by him as a result of his engagement hereunder, unless
authorized by the Corporation. For purposes of this Section 8, the term
"proprietary or confidential information" shall mean all information which is
known only to Wareham, or to Wareham and the employees, former employees,
consultants, or others in a confidential relationship with the Corporation, and
relates to specific matters such as trade secrets, customers, potential
customers, vendor lists, pricing and credit techniques, research and development
activities, private processes, business plans, technical information,
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books and records, and any other information which the Corporation is obligated
to keep confidential pursuant to the Corporation's contractual obligations to
third parties, as they may exist from time to time, which Wareham may have
acquired or obtained by virtue of work heretofore or hereafter performed for or
on behalf of the Corporation, or which he may acquire or may have acquired
knowledge of during the performance of said work, and which is not in the public
domain.
(b) In the event of a breach or a threatened breach by Wareham
of the provisions of this Section 8, the Corporation shall be entitled to an
injunction, without being required to post any bond, restraining Wareham from
disclosing, in whole or in part, the aforementioned proprietary or confidential
information of the Corporation, or from rendering any services to any person,
firm, corporation, association, or other entity to whom such proprietary or
confidential information, in whole or in part, has been disclosed or is
threatened to be disclosed. Nothing contained herein shall be construed as
prohibiting the Corporation from pursuing any other remedies available to the
Corporation for such breach or threatened breach, including the recovery of
damages from WML and/or Wareham.
8. Restrictive Covenants.
(a) In light of the unique and valuable services it is
expected Wareham will render to the Corporation, Wareham's knowledge of the
business of the Corporation and proprietary information relating to the business
of the Corporation and similar knowledge regarding the Corporation it is
expected Wareham will obtain during the course of his engagement by the
Corporation, and in consideration of this Agreement and the Fees to be paid by
the Corporation hereunder, Wareham agrees that for so long as this Agreement is
in effect and for a period of one year thereafter (the "Covenant Period"), he
will not compete, directly or indirectly, with the Corporation or any of its
subsidiaries now owned or hereafter acquired (for purposes of this Section 9,
the "Corporation") or, directly or indirectly (except as permitted by Section 3
hereof), own, manage, operate, control, loan money to, or participate in the
ownership, management, operation or control of, or be connected with as a
director, officer, employee, partner, consultant, agent, independent contractor
or otherwise, or acquiesce in the use of his name in, any other business or
organization which competes, directly or indirectly, with the Corporation, in
any geographical area in which the Corporation is then conducting business or
any geographical area in which, to the knowledge of Wareham, the Corporation
plans to conduct business within a six (6) month period.
(b) During the Covenant Period, Wareham will not, directly or
indirectly, either individually or on behalf of any other person or entity (i)
solicit customers, suppliers, or other business relations of the Corporation for
the purpose of interfering with or encouraging them to terminate their
relationship with the Corporation, or (ii) encourage other employees (full-time
or part-time) of the Corporation to terminate their employment with the
Corporation.
(c) It is acknowledged and agreed that the restrictions
contained in this Section 9, including, without limitation, the time periods and
the geographical areas of the restrictions,
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are fair and reasonable and do not place any undue hardship on Wareham, and are
reasonably required for the protection of the goodwill, the business, and the
interests of the Corporation and its officers, directors, and other employees.
(d) It is the desire and intent of the parties that the
provisions of this Section 9 shall be enforced to the fullest extent permissible
under the laws and public policies applied in each jurisdiction in which
enforcement is sought. Accordingly, if any particular provision of this Section
9 shall be adjudicated to be invalid or unenforceable, such provision shall be
deemed amended to delete therefrom the portion thus adjudicated to be invalid or
unenforceable. Such deletion shall apply only with respect to the operation of
such provisions of this Section 9 in the particular jurisdiction in which such
adjudication is made. In addition, if the scope of any restriction contained in
this Section 9 is too broad to permit enforcement thereof to its fullest extent,
then such restriction shall be enforced to the maximum extent permitted by law,
and Wareham hereby consents and agrees that such scope may be judicially
modified in any proceeding brought to enforce such restriction.
(e) In the event of a breach or threatened breach by Wareham
of the provisions of this Section 9, the Corporation shall be entitled to an
injunction and such other equitable relief as may be necessary or desirable to
enforce the restrictions contained herein. Nothing herein contained shall be
construed as prohibiting the Corporation from pursuing any other remedies
available for such breach or threatened breach or any other breach of this
Agreement.
9. Representations.
(a) WML and Wareham each represent and warrant to the
Corporation that (i) the execution, delivery and performance of this Agreement
by does not and will not conflict with, breach, violate or cause a default under
any contract, agreement, instrument, order, judgment or decree to which WML or
Wareham is a party or by which WML or Wareham is bound, and (ii) upon the
execution and delivery of this Agreement by WML and Wareham, this Agreement
shall be the valid and binding obligation of WML and Wareham, respectively,
enforceable against each of them in accordance with its terms.
(b) Wareham represents and warrants to the Corporation that
Wareham is not a party to or bound by any employment agreement, non-compete
agreement or confidentiality agreement with any other person or entity.
(c) The Corporation represents and warrants to WML and Wareham
that (i) the execution, delivery, and performance of this Agreement by the
Corporation does not and will not conflict with, breach, violate or cause a
default under any contract, agreement, instrument, order, judgment or decree to
which the Corporation is a party or by which it is bound, and (ii) upon the
execution and delivery of this Agreement by the Corporation, this Agreement
shall be the valid and binding obligation of the Corporation, enforceable
against it in accordance with its terms.
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10. Miscellaneous.
(a) Notices. All notices required or permitted to be given
under the provisions of this Agreement shall be in writing and delivered
personally or by certified or registered mail, return receipt requested, postage
prepaid, to the following persons at the following addresses, or to such other
persons at such other addresses as any party may request by notice in writing to
the other party to this Agreement.
If to WML or Wareham:
0000 Xxxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, XX X0X0X0
If to the Corporation:
x/x Xxxxxxxx Xxxxxxxxxxxxxxxxxxx XxxX
Xxxxxx Xxxxxx 0
Xxxxxx, Xxxxxxx D-10245
Attn: Xxxxx Xxxx, President
(b) Successors and Assigns. This Agreement shall be binding
upon the successors and assigns of the Corporation, and shall inure to the
benefit of and be enforceable by and against its successors and assigns. This
Agreement is personal in nature and may not be assigned or transferred by
Wareham or WML without the prior written consent of the Corporation.
(c) Entire Agreement. This instrument contains the entire
understanding and agreement between the parties relating to the subject matter
hereof, and neither this Agreement nor any provision hereof may be waived,
modified, amended, changed, discharged, or terminated, except by an agreement in
writing signed by the party against whom enforcement of any waiver,
modification, change, amendment, discharge, or termination is sought.
(d) Counterparts. This Agreement may be executed
simultaneously in counterparts, each of which shall be deemed an original, and
all of which counterparts shall together constitute a single agreement.
(e) Illegality. If any one or more of the provisions of this
Agreement shall be invalid, illegal, or unenforceable in any respect, the
validity, legality, and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
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(f) Captions. The captions of the sections hereof are for
convenience only and shall not control or affect the meaning or construction of
any of the terms or provisions of this Agreement.
(g) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Nevada, without giving any
effect to any doctrine pertaining to the conflict of laws. The parties hereto
irrevocably (i) submit to the jurisdiction of any Nevada state or federal court
in any action or proceeding arising out of or relating to this Agreement, (ii)
agree that all claims with respect to such action or proceeding shall be heard
and determined in such a Nevada state or federal court, and (iii) waive, to the
fullest extent possible, the defense of an inconvenient forum. The parties
hereby consent to and grant any such court jurisdiction over the persons of such
parties and over the subject matter of any such dispute and agree that delivery
or mailing of process or other papers in connection with any such action or
proceeding in the manner provided in Section 10(a) hereof or in such other
manner as may be permitted by law, shall be valid and sufficient service
thereof.
IN WITNESS WHEREOF, the parties hereto have set their hands and
executed this Agreement on the day and year first above written.
GEOTECK INTERNATIONAL, INC.
By:
--------------------------
WAREHAM MANAGEMENT LTD.
By:
--------------------------
G.W. Xxxxxx Xxxxxxx
--------------------------
G.W. Xxxxxx Xxxxxxx
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