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EXHIBIT 10.5
AGREEMENT
This AGREEMENT (the "Agreement") is entered into as of December 10, 1997
by and among Hariston Corporation, a Canadian Corporation ("Hariston"), on the
one hand, and Xxxx Xxxxxxxxxx ("Xxxxxxxxxx") and Xxxxx XxXxxxxx ("XxXxxxxx") on
the other hand.
RECITALS
A. Each of Brandolini and XxXxxxxx are officers and directors of Hariston;
X. Xxxxxxxxxx and XxXxxxxx have agreed to resign as officers and directors
of Hariston effective December 11, 1997 on the terms and conditions set
forth in this Agreement; and
C. In connection with Brandolini's and XxXxxxxx'x resignations, Hariston
desires to provide Brandolini and XxXxxxxx with the benefits and
privileges set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the promises and mutual obligations
of the parties set forth below, the parties hereby covenant and agree as
follows:
1. Resignation. Brandolini and XxXxxxxx hereby resign as officers and directors
of Hariston effective December 11, 1997 (the "Effective Date"). Brandolini and
XxXxxxxx agree to execute any and all additional documents which Hariston may
reasonably request to evidence such resignation or to effect the transition of
any powers or rights to any successor to any position previously held by
Brandolini and XxXxxxxx.
2. Corporate Expense Reimbursement. On or prior to December 31, 1997, Brandolini
and XxXxxxxx shall submit to Hariston reimbursement requests for all business
expenses incurred prior to the Effective Date for which Brandolini or XxXxxxxx
is entitled to reimbursement and such expenses shall be reimbursed by Hariston
within thirty days.
3. Acknowledgements. Brandolini and XxXxxxxx acknowledge and agree that, except
for the payments to be made in the future as expressly provided for in this
Agreement, they have received payment of all amounts due to them in connection
with their employment by Hariston, including without limitation, all salary,
severance pay, bonuses, sick leave, holiday pay, vacation pay, expense
reimbursement, life insurance, health or medical insurance, workers'
compensation, disability and other benefits or compensation.
4. Indemnities to Directors and Others.
(a) Except in respect of an action by or on behalf of Hariston or body
corporate to procure a judgment in its favour, Hariston shall indemnify each of
Brandolini and XxXxxxxx, and his heirs and legal representatives (collectively,
the "Brandolini Indemnified Parties"), against all costs, charges and expenses
(including attorney's fees and expenses, witness fees and travel
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expenses), including an amount paid to settle an action or satisfy a judgment,
reasonably incurred by him ( the "Expenses") in respect of any civil, criminal
or administrative action or proceeding to which he is made a party by reason of
being or having been a director or officer of the corporation or such body
corporate, if:
(i) he acted honestly and in good faith with a view to the best
interests of Hariston; and
(ii) in the case of a criminal or administrative action or
proceeding that is enforced by a monetary penalty, he had
reasonable grounds for believing that his conduct was
lawful.
(b) In connection with any matter for which indemnification may be
available hereunder, the Brandolini Indemnified Parties shall be entitled to
retain counsel satisfactory to them to represent them in such matter, such
counsel to be reasonably satisfactory to Hariston; provided, however, that the
Brandolini Indemnified Parties as a group may retain only one law firm with
respect to each related matter except to the extent that, in the opinion of
counsel to a Brandolini Indemnified Party, under applicable standards of
professional conduct, a conflict on any significant issue exists between
positions of any two or more Brandolini Indemnified Parties.
(c) Hariston may advance to the Brandolini Indemnified Parties, prior to
any final disposition of any threatened or pending action, suit, investigation
or proceeding, whether civil, criminal, administrative or investigative, any and
all Expenses (including legal fees and expenses) incurred in participating in,
investigating or defending any such action, suit, investigation or proceeding,
or testifying in connection therewith, within ten (10) days after receiving
copies of invoices for such Expenses.
(d) The rights conferred on the Brandolini Indemnified Parties by this
Agreement shall not be exclusive of any other right which they may have or
hereafter acquire under any statute, provision of the charter or Bylaws of
Hariston.
5. Miscellaneous
(a) Entire Agreement. This agreement and the agreements referred to
herein contain the entire agreement and understanding among the parties hereto
concerning the subject matter hereof and supersede and replace all prior
negotiations, proposed agreements and agreements, written or oral. Each of the
parties acknowledges and confirms that such party has made no promises,
representations or warranties whatsoever, express or implied, not contained
herein or in an agreement referred to herein concerning the subject matter
hereof, and that such party has not executed this Agreement in reliance on any
such promise, representation or warranty not contained herein or in such other
agreement.
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(b) Further Acts. Each party shall do all acts and things and make,
execute and deliver such written instruments as shall be reasonably required to
carry out the terms and intent of this Agreement.
(c) Counterparts. This agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
shall constitute one and the same agreement.
(d) Modifications. This Agreement may not be modified by any party
except in a writing signed by all of the parties hereto.
(e) Governing Law. This Agreement and the rights of the parties
hereunder shall be governed by and construed in accordance with the laws of the
Province of British Columbia in effect at the date of this Agreement, including
all matters of construction, validity, performance and enforcement and without
giving effect to principles of conflicts of laws.
(f) Severability. If any provision or term of this Agreement is held to
be illegal, invalid or unenforceable under present or future laws, such
provision or term shall be fully severable, and this Agreement shall be
construed and enforced as if such illegal, invalid or unenforceable provision
had never comprised part of this Agreement, and the remaining provisions of this
Agreement shall remain in full force and effect and shall be affected by the
illegal, invalid or unenforceable provision or by its severance from this
Agreement. Furthermore, in lieu of each such illegal, invalid or unenforceable
provision or term, there shall be added automatically as a part of this
Agreement another provision or term as similar to the illegal, invalid or
unenforceable provision, as may be possible and be legal, valid and enforceable.
(g) Captions. The captions used in the Section headings to this
Agreement are for convenience of reference only and shall not control or effect
the meaning or construction of any provision of this Agreement.
(h) Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties and their respective
successors and assigns. Hariston shall require and cause any successor (whether
direct or indirect, by purchaser, merger, consolidation, sale of assets or
otherwise) to execute a written agreement expressly assuming the obligations of
Hariston hereunder
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
HARISTON CORPORATION
By: /s/ L. Xxxxx Xxxxxx /s/ Xxxx Xxxxxxxxxx
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XXXX XXXXXXXXXX
Title: Secretary and Chief Financial Officer /s/ Xxxxx XxXxxxxx
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XXXXX XxXXXXXX
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