EXHIBIT 10.10
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is made and entered into
and is effective as of this 23 day of February, 2007 (the "Effective Date"), by
and between Pacific Energy Resources, Ltd., a Delaware corporation ("Company")
and Xxxxxx Xxxxx ("Consultant") with reference to the following facts:
A. The parties acknowledge and agree that Consultant possesses
invaluable experience and expertise in connection with financial and accounting
matters.
B. Company desires to obtain the benefit of Consultant's experience and
expertise by retaining Consultant to provide the services described in this
Agreement to Company.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained in this Agreement as well as other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties to
this Agreement hereby agree as follows:
1. THE CONSULTING ENGAGEMENT.
1.1 SERVICES. Pursuant to the terms and conditions of this Agreement,
Consultant shall provide such services to Company in connection with serving as
Acting Chief Financial Officer of the Company (the "Services"). Consultant shall
report to the Board of Directors of Company (the "Board").
1.2 CASH COMPENSATION. As compensation for the Services under this
Agreement, Consultant shall be paid monthly compensation of Six Thousand Dollars
($6,000.00).
1.3 REIMBURSEMENT OF EXPENSES. Company shall reimburse Consultant for
all reasonable out-of-pocket expenses, such as transportation, hotels, meals,
and telephone, necessarily incurred by Consultant's employees in connection with
their duties for any trip made at Company's request. Company will reimburse
Consultant for any other payment made by Consultant to third parties only when
authorized in advance by the Company. Such payment of fees and reimbursement of
expenses will be made only in response to itemized invoices satisfactory to the
Company, in the name of Consultant or its employees and submitted by Consultant
to the Company as set forth in Paragraph 7.4.
1.4 SPECIAL EDUCATION EXPENSES. Company shall reimburse Consultant for
the expenses of attending one oil and gas accounting training session in
Houston, Texas on March 14-15 at an approximate cost of $1,900.00 and one
Sarbanes Oxley training session for executive officers in the Los Angeles,
California region.
1.5 GRANT OF SHARE OPTIONS. With the prior approval of the Company's
Compensation Committee, the Employee shall be granted under and pursuant to the
terms of the Company's 2006 Share Option Plan, options to purchase in the
aggregate 200,000 shares of stock of the Company and subject to the following
vesting schedule:
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(a) Options to purchase 100,000 shares shall be granted
shortly after the signing of this Agreement, and
(b) Options to purchase 100,000 shares shall be granted
to the Employee upon the one year anniversary of this
Agreement.
2. TERM AND TERMINATION.
2.1 TERM. This Agreement shall commence as of the Effective Date, and
except as otherwise provided in this Agreement, shall continue for a period of
six (6) months from the date hereof and shall then be renewed on mutually
agreeable terms at the end of this period or a formal Employment Agreement shall
be entered into by the parties hereto.
2.2 TERMINATION.
2.2.1 This Agreement shall terminate upon a material breach of
the terms of this Agreement by Consultant provided that Company has provided
Consultant with written notice of such breach, and such breach, if capable of
being cured, has not been cured by Consultant within 30 days of Company's
delivery of written notice to Consultant. If the breach cannot be cured or is
not cured by Consultant within 30 days of Company's delivery of written notice
of the breach to Consultant, then Company shall pay to Consultant all accrued
but unpaid fees and reimbursement of expenses. Company shall have no further
obligation to Consultant under this Agreement.
2.2.2 This Agreement shall terminate upon the death or
disability of Consultant. For this purpose "disability" shall mean shall mean
the failure of Consultant to render services to Company because of physical or
mental illness or other disability for a continuous period of twenty-two (22)
weeks or for shorter periods aggregating more than one hundred and ten (110)
days in any consecutive twelve (12) month period. On the termination of this
Agreement due to Consultant's death or disability, Company shall pay to
Consultant all accrued but unpaid fees and reimbursement of expenses. Company
shall have no obligation to pay any additional fees to Consultant under this
Agreement.
2.2.3 This Agreement shall termination upon a material breach
of the terms of this Agreement by Company provided that Consultant has provided
Company with written notice of such breach, and such breach, if capable of being
cured, has not been cured by Company within 30 days of Consultant's delivery of
written notice to Company. If the breach cannot be cured or is not cured by
Company within 30 days of Consultant's delivery of written notice of the breach
to Company, then Company shall pay to Consultant all accrued but unpaid fees and
reimbursement of expenses. Company shall have no obligation to pay any
additional fees to Consultant under this Agreement.
2.2.4 The Agreement shall terminate upon either the Consultant
or the Company giving the other a four (4) weeks written notice of termination.
3. NATURE OF RELATIONSHIP. Consultant is an independent contractor and will in
no event be considered an employee, partner or joint venturer of Company,
notwithstanding anything contained in this Agreement or any actions of either
party or circumstances arising in connection with the Services provided by
Consultant pursuant to the terms of this Agreement. Consultant has no authority
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to bind Company or to incur any obligation or liability on its behalf and will
not state or imply that Consultant has such authority. Consultant will not be
entitled to or eligible for benefits or programs offered by Company to its
employees. Consultant agrees to defend, indemnify and hold harmless, Company
Indemnified Parties (defined below) from and against any and all claims, losses,
debts, penalties, interest (including, but not limited to, interest on payments
and penalties owed or made by Company on behalf of Consultant) and expenses
(including, but not limited to, legal and accounting fees and costs) incurred by
Company in defending, satisfying or settling any action brought or threatened
against any of the Company Indemnified Parties, arising from a taxing
authority's determination that Consultant is an employee of Company and/or
Company's failure to pay or to withhold any payroll or income taxes or other tax
liabilities when due on compensation paid or payable to Consultant under this
Agreement and any interest and/or penalties arising from such failure.
4. CONFIDENTIAL INFORMATION. Any information provided by Company to Consultant
and any information otherwise obtained by Consultant in connection with the
performance of the Services (collectively "Confidential Information") will be
treated by Consultant as being proprietary and confidential information of
Company. With respect to all Confidential Information, unless required to do so
by court order or applicable law or regulation, Consultant will not at any time
during the term of this Agreement or thereafter (a) disclose such Confidential
Information to any third party; or (b) exploit or use such Confidential
Information except as permitted by this Agreement. Upon the request of Company,
Consultant will return all Confidential Information that is in tangible form and
any copies thereof in its possession or control and destroy all Confidential
Information in electronic or similar form. Confidential Information will not
include any information that (i) was in the public domain prior to the receipt
of same by Consultant; (ii) has subsequently become part of the public domain by
publication or otherwise, except by Consultant's wrongful acts; or (iii) was
received by Consultant from a third party which had no obligation of secrecy
with respect thereto.
5. INDEMNIFICATION BY CONSULTANT. Consultant shall indemnify, defend with
counsel of Company's choice and hold harmless Company and his agents, attorneys,
representatives, successors and assigns (collectively "Company Indemnified
Parties") against all losses, claims, liabilities, damages and expenses,
including reasonable attorneys' fees, incurred by or demanded from Company,
directly or indirectly arising out of or resulting from: (i) any act or omission
made by Consultant or its employees, agents or subcontractors related to
services performed for Company under this Agreement which is grossly negligent
or which constitutes a material breach of any of the terms of this Agreement; or
(ii) any untrue or inaccurate representation or warranty made by Consultant in
this Agreement.
6. INDEMNIFICATION BY COMPANY. Company shall indemnify, defend with counsel of
Consultant's choice and hold harmless Consultant and his agents, attorneys,
representatives, and successors and assigns (collectively "Consultant
Indemnified Parties") against all losses, claims, liabilities, damages and
expenses, including reasonable attorneys' fees, incurred by or demanded from
Consultant, directly or indirectly arising out of or resulting from: (i) any
claim against any Consultant Indemnified Party related to Services performed by
a Consultant Indemnified Party under this Agreement; provided that the
Consultant Indemnified Party was not grossly negligent in performing such
Services; (ii) any untrue or inaccurate representation or warranty made by
Company in this Agreement.
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7. GENERAL PROVISIONS.
7.1 ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties pertaining to the subject matter of this Agreement and
supersedes any and all prior agreements, representations and understandings of
the parties, written or oral. In the course of any prior dealings between the
parties, no uses of trade, and no parole or extrinsic evidence of any nature
shall be used to supplement, modify or vary any of the terms of this Agreement.
There are no conditions to the full effectiveness of this Agreement, and there
are no oral or other written representations or agreements between the parties
concerning the subject matter of this Agreement except as so expressly set forth
herein. Any representation, promise or condition, whether oral or written, not
specifically incorporated in this Agreement, shall be of no valid or binding
effect upon the parties. Each party to this Agreement further represents,
warrants and agrees that it is not relying, and has not relied, upon any
representation, warranty or statement, oral or written, made by any other party
to this Agreement with respect to this Agreement, except as expressly set forth
in this Agreement.
7.2 BINDING EFFECT. This Agreement shall inure to the benefit of, and
shall be binding upon, the respective successors and assigns of each of the
parties to this Agreement. Company may assign this Agreement to any successor or
assignee.
7.3 GOVERNING LAW. This Agreement shall be deemed to be made in, and in
all respects shall be interpreted, construed and governed by and in accordance
with the laws of, the State of California, without regard to principles of
conflict of laws.
7.4 NOTICE. All notices, requests, consents, directions, and demands
under this Agreement shall be deemed given and delivered when duly deposited in
the United States mail, postage prepaid, return receipt requested, or
transmitted by electronic mail or facsimile machine, or personally delivered,
addressed to either party at their respective addresses. Any party to this
Agreement may change their address by giving ten (10) days written notice to the
other party to this Agreement.
7.5 ATTORNEYS' FEES. In the event of any controversy, claim or dispute
between the parties to this Agreement arising out of or relating to this
Agreement or the breach of this Agreement, the prevailing party shall be
entitled in such proceeding to recover attorneys' fees, arbitration fees and all
other expenses and costs.
7.6 ADVICE OF COUNSEL. Each party represents and warrants that in
executing this Agreement such party has had the opportunity to obtain
independent accounting, financial, investment, legal, tax and other appropriate
advice; that the terms of the Agreement have been carefully read by such party
and its consequences explained to such party by its independent advisors, and
that such party fully understands the terms and consequences of this Agreement.
Each party further represents and warrants that, in executing this Agreement,
such party has not relied on any inducements, promises or representations made
by the other party (except those expressly set forth in this Agreement) or the
accountants, attorneys or other agents representing or serving the other party.
Each party represents and warrants that its execution of this Agreement is free
and voluntary.
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7.7 INTERPRETATION. This Agreement shall be construed in accordance
with its fair meaning as if prepared by all parties to this Agreement, and shall
not be interpreted against either party on the basis that it was prepared by one
party or the other. The captions, headings and subcaptions used in this
Agreement are for convenience only and do not in any way affect, limit, amplify
or modify the terms and provisions of this Agreement. Words used in this
Agreement in the masculine gender shall include the neuter and feminine gender,
words used in this Agreement in the neuter gender shall include the masculine
and feminine, words used in this Agreement in the singular shall include the
plural, and words used in the plural shall include the singular, wherever the
context so reasonably requires.
7.8 AMENDMENT AND WAIVER. No provision of this Agreement or any of the
documents referred to in this Agreement may be amended, modified, supplemented,
changed, waived, discharged or terminated, except by a writing signed by or on
behalf of each party to this Agreement.
7.9 SEVERABILITY. If any provision of this Agreement or the application
of any provision to any person or circumstance shall be invalid or
unenforceable, the remainder of this Agreement and the application of such
provision or provisions to other persons or circumstances shall not be affected
thereby and shall be enforced to the greatest extent permitted by law.
7.10 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, any one of which, if originally executed, shall be binding upon
each of the parties signing thereon, and all of which taken together shall
constitute one and the same instrument. The parties intend to execute two
complete copies of this Agreement, one to be returned by each of them, either of
which shall be deemed an original of this Agreement.
7.11 AUTHORITY. The parties to this Agreement represent and warrant
that they have full power, authority and legal right to execute and deliver, and
to perform and observe the provisions of, this Agreement and to carry out the
transactions contemplated in this Agreement. The execution, delivery and
performance by the Company has been duly authorized by all necessary legal
action and the parties have obtained any necessary legal action.
7.12 FURTHER ASSURANCES. Each party agrees and covenants that it will
at any time and from time to time, upon the request of the other execute,
acknowledge, deliver or perform all such further acts, deeds, assignments,
transfers, conveyances and assurances as may be required to carry out the terms
and provisions of this Agreement.
7.13 CUMULATIVE RIGHTS AND REMEDIES. The rights and remedies of the
parties under this Agreement shall not be mutually exclusive, and the exercise
by any party of any right to which it is entitled shall not preclude the
exercise of any other right it may have.
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7.14 ARBITRATION. In the event of a dispute arising from this
Agreement, the parties agree to try in good faith to resolve the dispute through
mediation by selecting a third party to help them reach an agreement. If they
are unable to resolve the dispute through mediation, within sixty (60) days from
the date notice is first given by one party to the other as to the existence of
such a dispute, they agree to submit to resolution by arbitration in accordance
with the Commercial Arbitration Rules of the American Arbitration Association
(the "Rules"). Any hearing under the Rules shall take place at Los Angeles,
California in accordance with Rule 11 of the Rules. The hearing shall be before
one arbitrator in accordance with Rule 17 of the Rules. The provisions of
Section 1283.05 of the California Code of Civil Procedure are incorporated into
and made a part of this Agreement. Any award rendered by the Arbitrator pursuant
to this Agreement and the Rules shall be enforceable in the Superior Court of
the County of Los Angeles, in and for the State of California as the court
having exclusive jurisdiction over such arbitration. Such arbitration shall be
binding and final. IN AGREEING TO ARBITRATION, THE PARTIES ACKNOWLEDGE THAT IN
THE EVENT OF A DISPUTE ARISING FROM THIS AGREEMENT, EACH PARTY IS GIVING UP THE
RIGHT TO HAVE THE DISPUTE DECIDED IN A COURT OF LAW BEFORE A JUDGE OR JURY AND
INSTEAD ARE ACCEPTING THE USE OF ARBITRATION FOR RESOLUTION.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the Effective Date.
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"COMPANY" "CONSULTANT"
Pacific Energy Resources Ltd., Xxxxxx Xxxxx
A Delaware corporation
By: /s/ Xxxxxx Xxxxx /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
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Its: President
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