EMPLOYMENT AGREEMENT
Exhibit
10.11
between
Tankers
Services AS
and
Eirik
Ubøe
This
employment agreement (the “Agreement”)
has
been made on this 31 day of January, 2006, by and between:
| 1. |
Tankers
Services AS,
a
company incorporated under the laws of Norway having its registered
office
at Haakon VII’s gt 1, Oslo, Norway (“Employer”),
and
|
| 2. |
Eirik
Ubøe,
an individual having his address in Jacob Neumanns
xxx 00, 0000 Xxxxx, Xxxxxx (“Executive”).
|
WHEREAS
| A. |
Employer
desires to employ Executive as its Managing Director;
and
|
| B. |
Executive
is willing to serve in the employ of Employer for the period and
upon the
other terms and conditions of this
Agreement.
|
Now,
therefore, in consideration of the foregoing and the respective representations,
warranties, covenants and agreements set forth herein, the parties hereto agree
as follows:
| 1. |
EMPLOYMENT
|
| 1.1 |
Effectiveness
|
This
Agreement shall become effective on 1 January 2006.
| 1.2 |
Term
|
The
employment is a fixed-term employment, cf. the Act of 17. June 2005 No. 62
relating to Working Environment, Working Hours and Employment Protection
(hereafter referred to as "the Employment Act") section 14-10 (1).
The
term
of Executive’s employment under this Agreement (the “Term”)
shall
commence on 1 January 2006 (the “Commencement
Date”),
and,
unless earlier terminated pursuant to the provisions of Section 3, shall
terminate on 15 June 2008, provided
that
such term may be extended by Employer, in its sole discretion, for a term to
be
determined by Employer upon giving six months’ prior written notice to
Executive of its intent to so extend.
| 1.3 |
Position
|
During
the Term, Employer shall employ Executive, and Executive shall serve, as
Managing Director of the Employer reporting to the Board of Directors. Executive
shall have the duties, responsibilities and authority as follows from the
position of “daglig leder” under the Norwegian Limited Companies Xxx 0000,
including general executive authority over Employer’s affairs arising in the
ordinary course of business, and shall perform the other services and duties
as
determined from time to time by the Board of Directors of Employer (the
“Board”).
2
The
Board
may instruct Executive to accept appointments to the Boards of the Employer's
affiliated companies. Upon termination of employment, Executive shall
simultaneously withdraw from such appointments.
| 1.4 |
Time
and Effort
|
Executive
shall serve Employer faithfully, loyally, honestly and to the best of
Executive’s ability. Executive shall devote substantially all of Executive’s
business time to the performance of Executive’s duties on behalf of Employer.
During the Term, Executive shall not, directly or indirectly, engage in any
employment or other activity that, in the sole discretion of the Board, is
competitive with or adverse to the business, practice or affairs of Employer
or
any of its affiliates, whether or not such activity is pursued for profit or
other advantage, or that would conflict or interfere with the rendition of
Executive’s services or duties, provided
that
Executive may serve on civic or charitable boards or committees and serve as
a
non-employee member of a board of directors of a corporation as to which the
Board has given its consent. Executive shall resign from or terminate all
positions, relationships and activities that would be inconsistent with the
foregoing.
Executive
shall be employed full time with working hours as determined by Employer at
any
time. Executive is exempt from the ordinary rules concerning working hours
in
the Employment Act, cf. the Employment Act section 10-12, and shall work the
amount of time necessary to fulfil the position satisfactory.
| 1.5 |
Location
and Travel
|
Executive's
place of work shall be Employer's offices at Oslo, Norway.
Executive
acknowledges and agrees that his duties and responsibilities to Employer will
require him to travel worldwide from time to time, including extensively to
the
offices of the Employer’s parent company Double Hull Tankers,
Inc.
(the “Parent
Company”)
in the
Channel Islands.
| 2. |
COMPENSATION
|
| 2.1 |
Signing
on fee
|
Notwithstanding
the provisions in Section 1.1 the Executive shall have the right to a fixed
Signing on Fee amount of $ 51 400.
| 2.2 |
Salary
|
As
compensation for all services rendered by Executive to Employer and all its
affiliates in any capacity and for all other obligations of Executive hereunder,
Employer shall pay Executive a salary (“Salary”)
during
the Term at the annual rate of $250,000, inclusive of compensation for overtime.
The Salary is payable monthly to a bank account specified by
Executive.
Executive
is not entitled to separate compensation for the board positions performed
in
accordance with Clause 1.3 above unless agreed with the Board.
| 2.3 |
Equity
Awards and Cash Awards
|
3
The
Executive is subject to the discretion of the board of the Parent Company
eligible for equity awards and cash awards under the Group Incentive
Compensation Plan and has pursuant to said incentive compensation plan received,
stock options with respect to Parent Company’s common stock (“Options”) and
restricted shares of Parent Company’s common stock (“Restricted Stock”) having
an aggregate grant-date value of $75,000 (the “Initial Grants”). The Initial
Grants shall be divided equally between Options, which will vest pro-rata over
three years, and Restricted Stock, which will vest pro rata over four
years. The Initial Grants and the other terms and conditions thereof have been
evidenced by award agreements entered into by Executive and Parent Company.
During the Term, Executive shall be eligible to receive other awards of equity
interests in Parent Company in such amounts and subject to such terms and
conditions as the Board of the Parent Company may determine in its
discretion.
| 2.4 |
Benefits
|
During
the Term, Executive shall not be entitled to receive, and Employer shall have
no
obligation to provide, any employee benefits (including health, welfare,
disability, pension, retirement and death benefits), fringe benefits or
perquisites, except as otherwise set forth herein or statutorily required by
Norwegian law.
| 2.5 |
Vacation.
|
Executive
is entitled to holiday and holiday allowances in accordance with the Act of
29.
April 1988 No. 21 relating to holidays and Employer’s rules from time to time in
force.
| 2.6 |
Business
Expenses
|
Employer
shall reimburse Executive for all necessary and reasonable “out-of-pocket”
business expenses incurred by Executive in the performance of Executive’s duties
hereunder, provided
that
Executive furnishes to Employer adequate records and other documentary evidence
required to substantiate such expenditures and otherwise complies with any
travel and expense reimbursement policy established by the Board from time
to
time.
| 2.7 |
Withholdings/deductions
from salary etc.
|
Employer
and its affiliates may withhold or deduct from any amounts payable under this
Agreement such taxes, fees, contributions and other amounts as may be required
to be withheld or deducted pursuant to any applicable law or
regulation.
Deductions
from salary, bonus and holiday allowance may be made only in so far as these
are
permitted by section 14-15 (2)of the Employment Act, hereunder in;
| a. |
amounts
paid to Executive as advance on
salary;
|
| b. |
incorrectly
paid salary or holiday allowance;
|
| c. |
amounts
received as advance on travel or business
expenses;
|
| d. |
defaults
on instalments and interest on loans agreed upon in writing granted
by
Employer to Executive;
|
4
| e. |
Executive’s
outstanding debts to Employer at the date of the termination of
employment, unless a specific repayment agreement has been entered
into
and adequate security provided.
|
3. TERMINATION
| 3.1 |
General
|
If
the
employment is terminated before 15 June 2008, or the term is extended by
Employer, the terms in this Section 3 will apply.
Upon
termination of employment, Executive shall return to Employer all property
in
his possession, custody or control belonging to Employer, including but not
limited to business cards, credit and charge cards, keys, security and computer
passes, mobile telephones, personal computer equipment, original and copy
documents or other media on which information is held in his possession relating
to the business or affairs of the Employer.
| 3.2 |
Termination
by Executive
|
If
Executive terminates his employment with Employer for any reason, Executive
shall provide written notice to Employer. The
period of notice shall be one month. The period of notice shall start to run
on
the first day of the calendar month immediately following the date upon which
notice was given.
| 3.3 |
Termination
by Employer
|
Executive
is exempt from the rules regarding dismissal or discharge in the Employment
Act
Chapter XII, cf. the Employment Act section 15-16(2). Executive also
acknowledges that Employer is entitled to terminate this Agreement on any
grounds without regard to breach of contract. Thus, subject to the provisions
of
this Section 3, Executive’s employment with Employer may be terminated by
Employer at any time and for any reason, which termination shall be effective
at
the end of the calendar month following the month the notice of termination
was
served.
Executive
shall have the right to compensation (without holiday pay) in accordance with
the provisions mentioned below. The compensation is paid at the last day of
employment if the Board decides that the Employee shall withdraw from his
position, and there is no material breach of the terms of employment or there
are no justifiable reasons for dismissal or discharge according to the
provisions of the Employment Act. In
the
event that Executive’s employment with Employer is terminated, at any time and
for any reason, Executive shall have no further rights to any compensation,
payments or any other benefits under this Agreement or any other contract,
plan,
policy or arrangement with Employer or its affiliates, except as follow from
Norwegian mandatory statutory requirements or as set forth in this Section
3.
The
compensation in this Section
3
does not form the basis for holiday pay or pension benefits.
| 3.4 |
Accrued
Rights
|
Upon
the
termination of Executive’s employment with Employer, whether by Employer or
Executive, at any time and for any reason, Executive shall be entitled to
receive (a) Salary earned through the effective date of termination that
remains unpaid as of such date and (b) reimbursement of any unreimbursed
business expenses incurred by Executive prior to the effective date of
termination to the extent such expenses are reimbursable under Section 2.7
(all such amounts, the “Accrued
Rights”).
5
| 3.5 |
Termination
by Employer Other Than for Cause
|
| a. |
If
(i) Employer elects to terminate Executive’s employment during the
Term for any reason other than Cause (as defined below) or
(ii) Employer elects not to extend the Term
in accordance with Section 1.2 and Employer would not at such time
have Cause to terminate Executive’s employment, then (A) Employer
shall continue to pay Executive’s Salary through the later of (1) 15
June 2008 and (2) the first anniversary of the effective date of
Executive’s termination of employment and (B) in the event of a
termination pursuant to clause (i), all equity-based compensation
granted to Executive pursuant to Clause 2.3 (including the Initial
Grants) shall immediately vest and become exercisable, subject to
the
other terms and conditions of such grants, provided
that Employer shall not be obligated to commence any payment under
this
Section 3.5, and Executive shall not be entitled to any such acceleration,
until such time as Executive has provided an irrevocable waiver and
general release of claims, including under any applicable Norwegian
labour
legislation (other than Executive’s rights under this Agreement), in favor
of Employer, its affiliates, and their respective directors, officers,
employees, agents and representatives in form and substance acceptable
to
Employer; provided,
further,
that Employer shall be entitled to cease making, and Executive shall
forfeit any entitlement to receive, such payments in the event that
Executive breaches any of his obligations under Section
4.
|
| b. |
For
purposes of this Agreement, the term “Cause”
shall mean (i) Executive’s failure to perform those duties that
Executive is required or expected to perform pursuant to this Agreement
including a failure to ensure that the Employer fulfils its obligations
towards the Parent Company under the Service Agreement dated 2006
(unless
otherwise instructed by the board), (ii) Executive’s dishonesty or
breach of any fiduciary duty to Employer in the performance of Executive’s
duties hereunder, (iii) Executive’s conviction of, or a plea of
guilty or nolo contendere to, a misdemeanor involving moral turpitude,
fraud, dishonesty, theft, unethical business conduct or conduct that
impairs the reputation of Employer or any of its affiliates or any
felony
(or the equivalent thereof in any jurisdiction), (iv) Executive’s
gross negligence or wilful misconduct in connection with Executive’s
duties hereunder or any act or omission that is injurious to the
financial
condition or business reputation of Employer or any of its affiliates
or
(v) Executive’s breach of the provisions of Section 4 of this
Agreement.
|
| 3.6 |
Termination
upon Death or Disability
|
| a. |
Executive’s
employment with Employer shall terminate immediately upon Executive’s
death or Disability (as defined below). In the event Executive’s
employment terminates due to death or Disability, then Employer shall
continue to pay Executive’s Salary through the first anniversary of the
effective date of such termination of
employment.
|
6
| b. |
For
purposes of this Agreement, the term “Disability”
shall mean the inability of Executive, due to illness, accident or
any
other physical or mental incapacity, to perform Executive’s duties in a
normal manner for a period of 120 days (whether or not consecutive)
in any twelve-month period during the Term. The Board shall determine,
on
the basis of the facts then available, whether and when the Disability
of
Executive has occurred. Such determination shall take into consideration
the expert medical opinion of a physician mutually agreeable to Employer
and Executive based upon such physician’s examination of Executive.
Executive agrees to make himself available for such examination upon
the
reasonable request of Employer.
|
| 3.7 |
Change
of Control
|
| a. |
In
the event that Executive’s employment is terminated by Executive for Good
Reason within one year following a Change of Control, Executive shall
be
entitled to receive the continuation of his Salary through the later
of
(i) 15th June 2008 and (ii) the first anniversary of the effective
date of
Executive’s termination of
employment.
|
| b. |
For
purposes of this Agreement, the term
|
| (i) |
“Change
of Control”
shall mean the occurrence of any of the following events:
|
| A. |
(A)the
consummation of (1) a merger, consolidation, statutory share exchange
or
similar form of corporate transaction involving (x) Parent Company or
(y) any entity in which Parent Company, directly or indirectly, possesses
50% or more of the total combined voting power of all classes of
its
stock, but in the case of this clause (y) only if Parent Company
Voting
Securities (as defined below) are issued or issuable in connection
with
such transaction (each of the transactions referred to in this clause
(1)
being hereinafter referred to as a “Reorganization”) or (2) the sale
or other disposition of all or substantially all the assets of the
Parent
Company to an entity that is not an affiliate (a “Sale”) if such
Reorganization or Sale requires the approval of Parent Company’s
stockholders under the law of the Parent Company’s jurisdiction of
organization (whether such approval is required for such Reorganization
or
Sale or for the issuance of securities of Employer in such Reorganization
or Sale), unless, immediately following such Reorganization or Sale,
(I) all or substantially all the individuals and entities who were
the “beneficial owners” (as such term is defined in Rule 13d-3 under the
Exchange Act (or a successor rule thereto)) of the Shares or other
securities eligible to vote for the election of the Board (collectively,
the “Parent Company Voting Securities”) outstanding immediately prior to
the consummation of such Reorganization or Sale beneficially own,
directly
or indirectly, more than 50% of the combined voting power of the
then
outstanding voting securities of the entity resulting from such
Reorganization or Sale (including, without limitation, an entity
that as a
result of such transaction owns Parent Company or all or substantially
all
the Parent Company’s assets either directly or through one or more
subsidiaries) (the “Continuing Entity”) in substantially the same
proportions as their ownership, immediately prior to the consummation
of
such Reorganization or Sale, of the outstanding Parent Company Voting
Securities (excluding any outstanding voting securities of the Continuing
Entity that such beneficial owners hold immediately following the
consummation of the Reorganization or Sale as a result of their ownership
prior to such consummation of voting securities of any entity involved
in
or forming part of such Reorganization or Sale other than Parent
Company
and its affiliates) and (II) no Person beneficially owns, directly or
indirectly, 30% or more of the combined voting power of the then
outstanding voting securities of the Continuing Entity immediately
following the consummation of such Reorganization or
Sale;
|
7
| B. |
the
stockholders of Parent Company approve a plan of complete liquidation
or
dissolution of Parent Company; or
|
| C. |
any
“person” or “group” (as such terms are used in Sections 13(d) and 14(d)(2)
of the Exchange Act, respectively) (other than Employer or an affiliate)
becomes the beneficial owner, directly or indirectly, of securities
of
Parent Company representing 50% or more of the then outstanding Parent
Company Voting Securities; provided
that for purposes of this subparagraph (C), any acquisition directly from
Parent Company shall not constitute a Change of Control; and
|
| (ii) |
“Good
Reason”
shall mean the occurrence of any of the following events or circumstances
(without the prior written consent of Executive): (A) a material
reduction
of Executive’s authority or a material change in Executive’s functions,
duties or responsibilities, (B) a reduction in Executive’s Salary, (C) a
requirement that Executive report to anyone other than the Board,
(D) a
requirement that Executive relocate his residence (it being understood
that the requirements set forth in Section 1.5 do not constitute a
requirement to relocate) or (E) a breach by Employer of any material
obligation of Employer under this Agreement (which breach has not
been
cured within 30 days after written notice thereof is provided to
Employer
by Executive specifically identifying such breach in reasonable
detail).
|
4. EXECUTIVE
COVENANTS
| 4.1 |
Employer’s
Interests
|
Executive
acknowledges that Employer has expended substantial amounts of time, money
and
effort to develop business strategies, substantial customer and supplier
relationships, goodwill, business and trade secrets, confidential information
and intellectual property and to build an efficient organization and that
Employer has a legitimate business interest and right in protecting those assets
as well as any similar assets that Employer may develop or obtain following
the
Commencement Date. Executive acknowledges and agrees that the restrictions
imposed upon Executive under this Agreement are reasonable and necessary for
the
protection of such assets and that the restrictions set forth in this Agreement
will not prevent Executive from earning an adequate and reasonable livelihood
and supporting his dependents without violating any provision of this Agreement.
Executive further acknowledges that Employer would not have agreed to enter
into
this Agreement without Executive’s agreeing to enter into, and to honour the
provisions and covenants of, this Section 4. Therefore, Executive agrees that,
in consideration of Employer’s entering into this Agreement and Employer’s
obligations hereunder and other good and valuable consideration, the receipt
of
which is hereby acknowledged by Executive, Executive shall be bound by, and
agrees to honour and comply with, the provisions and covenants contained in
this
Section 4 following the Commencement Date.
8
| 4.2 |
Scope
of Covenants
|
For
purposes of this Section 4, the term “Employer” includes Employer’s affiliates,
and its and their predecessors, successors and assigns.
| 4.3 |
Non-Disclosure
of Confidential Information
|
| a. |
Executive
acknowledges that, in the performance of his duties as an employee
of
Employer, Executive may be given access to Confidential Information
(as
defined below). Executive agrees that all Confidential Information
has
been, is and will be the sole property of Employer and/or the Parent
Company and that Executive has no right, title or interest therein.
Executive shall not, directly or indirectly, disclose or cause or
permit
to be disclosed to any person, or utilize or cause or permit to be
utilized, by any person, any Confidential Information acquired pursuant
to
Executive’s employment with Employer (whether acquired prior to or
subsequent to the execution of this Agreement or the Commencement
Date) or
otherwise, except that Executive may (i) utilize and disclose
Confidential Information as required in the discharge of Executive’s
duties as an employee of Employer in good faith, subject to any
restriction, limitation or condition placed on such use or disclosure
by
Employer and/or the Parent Company, and (ii) disclose Confidential
Information to the extent required by applicable law or as ordered
by a
court of competent jurisdiction.
|
| b. |
For
purposes of this Agreement, “Confidential
Information”
shall mean trade secrets and confidential or proprietary information,
knowledge or data that is or will be used, developed, obtained or
owned by
Employer, Parent Company or any of their affiliates relating to the
business, operations, products or services of Employer, Parent Company
or
any such affiliate or of any customer, supplier, employee or independent
contractor thereof, including products, services, fees, pricing,
designs,
marketing plans, strategies, analyses, forecasts, formulas, drawings,
photographs, reports, records, computer software (whether or not
owned by,
or designed for, Employer, Parent Company or any of their affiliates),
operating systems, applications, program listings, flow charts, manuals,
documentation, data, databases, specifications, technology, inventions,
developments, methods, improvements, techniques, devices, products,
know-how, processes, financial data, customer or supplier lists,
contact
persons, cost information, regulatory matters, employee information,
accounting and business methods, trade secrets, copyrightable works
and
information with respect to any supplier, customer, employee or
independent contractor of Employer, Parent Company or any of their
affiliates in each case whether patentable or unpatentable, whether
or not
reduced to writing or other tangible medium of expression and whether
or
not reduced to practice, and all similar and related information
in any
form; provided,
however,
that Confidential Information shall not include information that
is
generally known to the public other than as a result of disclosure
by
Executive in breach of this Agreement or in breach of any similar
covenant
made by Executive or any other duty of
confidentiality.
|
9
| 4.4 |
Non-Disparagement
|
After
the
date hereof, Executive shall not, whether in writing or orally, criticize or
disparage Employer, the Parent Company or any of their affiliates, their
businesses or any of their customers, clients, suppliers or vendors or any
of
their current or former, stockholders, directors, officers, employees, agents
or
representatives or any affiliates, directors, officers or employees of any
of
the foregoing, provided
that
Executive may provide critical assessments of Employer to Employer during
the Term.
| 4.5 |
Non-Competition
|
| a. |
For
the Restricted Period (as defined below), Executive shall not directly
or
indirectly, without the prior written consent of the
Board:
|
| (i) |
engage
in any activity or business, or establish any new business, in any
location that is involved with the voyage, chartering or time chartering
of crude oil tankers, including assisting any person in any way to
do, or
attempt to do, any of the
foregoing;
|
| (ii) |
solicit
any person that is a customer or client (or prospective customer or
client) of Employer, Parent Company or any of their affiliates to
purchase
any goods or services of the type sold by Employer, Parent Company
or any
of their affiliates from any person other than Employer, Parent Company
or
any of their affiliates or to reduce or refrain from doing (or otherwise
change the terms or conditions of) any business with Employer, Parent
Company or any of their affiliates, (B) interfere with or damage
(or
attempt to interfere with or damage) any relationship between Employer,
Parent Company or any of their affiliates and their respective employees,
customers, clients, vendors or suppliers (or any person that Employer,
Parent Company or any of their affiliates have approached or have
made
significant plans to approach as a prospective employee, customer,
client,
vendor or supplier) or any governmental authority or any agent or
representative thereof or (C) assist any person in any way to do, or
attempt to do, any of the foregoing;
or
|
| (iii) |
form,
or acquire a two (2%) percent or greater equity ownership, voting
or
profit participation interest in, any
Competitor.
|
10
| b. |
For
purposes of this Agreement, the term “Restricted
Period”
shall mean a period commencing on 1 January 2006 and terminating
one year
from the date Executive ceases to be an employee of Employer for
any
reason. The Restricted Period shall be tolled during (and shall be
deemed
automatically extended by) any period in which Executive is in violation
of this Section 4.5.
|
| c. |
For
purposes of this Agreement, the term “Competitor”
means any person that engages in any activity, or owns or
controls a significant interest in any person that engages in any
activity, in the voyage, chartering and time chartering of crude
oil
tankers; provided
that a Competitor shall not include any person who the Board has
deemed,
through its prior written approval, not to be a
Competitor.
|
| 4.6 |
Records
|
All
memoranda, books, records, documents, papers, plans, information, letters,
computer software and hardware, electronic records and other data relating
to
Confidential Information, whether prepared by Executive or otherwise, in
Executive’s possession shall be and remain the exclusive property of Employer
and/or the Parent Company, and Executive shall not directly or indirectly assert
any interest or property rights therein. Upon termination of employment with
Employer for any reason, and upon the request of Employer at any time, Executive
will immediately deliver to Employer all such memoranda, books, records,
documents, papers, plans, information, letters, computer software and hardware,
electronic records and other data, and all copies thereof or therefrom, and
Executive will not retain, or cause or permit to be retained, any copies or
other embodiments of such materials.
| 4.7 |
Specific
Performance
|
Executive
agrees that any breach by Executive of any of the provisions of this Section
4
shall cause irreparable harm to Employer that could not be adequately
compensated by monetary damages and that, in the event of such a breach,
Executive shall waive the defence in any action for specific performance that
a
remedy at law would be adequate, and Employer shall be entitled to
(a) specifically enforce the terms and provisions of this Section 4 without
the necessity of proving actual damages or posting any bond or providing prior
notice and (b) cease making any payments or providing any benefit otherwise
required by this Agreement (including payments under Section 3), in each case
in
addition to any other remedy to which Employer may be entitled at law or in
equity. Without limiting the generality of the foregoing, in any proceeding
in
which Employer seeks enforcement of this Agreement or seeks relief from
Executive’s violation of this Agreement and Employer prevails in such
proceeding, Employer shall be entitled to recover from Executive all litigation
costs and attorneys’ fees and expenses incurred by Employer in any suit, action
or proceeding arising out of or relating to this Agreement.
| 4.8 |
Executive
Representations and Warranties
|
Executive
represents and warrants to Employer that the execution and delivery of this
Agreement by Executive and the performance by Executive of Executive’s duties
hereunder shall not constitute a breach of, or otherwise contravene, or conflict
with the terms of any contract, agreement, arrangement, policy or understanding
to which Executive is a party or otherwise bound.
11
| 4.9 |
Cooperation
|
Following
the termination of Executive’s employment, Executive shall provide reasonable
assistance to and cooperation with Employer in connection with any suit, action
or proceeding (or any appeal therefrom) relating to acts or omissions that
occurred during the period of Executive’s employment with Employer. Employer
shall reimburse Executive for any reasonable expenses incurred by Executive
in
connection with the provision of such assistance and cooperation.
5. MISCELLANEOUS
| 5.1 |
Assignment
|
This
Agreement is personal to Executive and shall not be assignable by Executive.
The
parties agree that any attempt by Executive to delegate Executive’s duties
hereunder shall be null and void. Employer may assign this Agreement and its
rights and obligations thereunder, in whole or in part, to any person that
is an
affiliate, or a successor in interest to substantially all the business or
assets, of Employer or Parent Company. Upon such assignment, the rights and
obligations of Employer hereunder shall become the rights and obligations of
such affiliate or successor person, and Executive agrees that Employer shall
be
released and novated from any and all further liability hereunder. For purposes
of this Agreement, the term “Employer” shall mean Employer as hereinbefore
defined in the recitals to this Agreement and any permitted assignee to which
this Agreement is assigned.
| 5.2 |
Successors
|
This
Agreement shall be binding upon and shall inure to the benefit of the successors
and permitted assigns of Employer and the personal and legal representatives,
executors, administrators, successors, distributees, devisees and legatees
of
Executive. Executive acknowledges and agrees that all Executive’s covenants and
obligations to Employer, as well as the rights of Employer under this Agreement,
shall run in favor of and will be enforceable by Employer, its affiliates and
their successors and permitted assigns.
| 5.3 |
Entire
Agreement
|
This
Agreement contains the entire understanding of Executive, on the one hand,
and
Employer on the other hand, with respect to the subject matter hereof, and
all
oral or written agreements or representations, express or implied, with respect
to the subject matter hereof are set forth in this Agreement.
| 5.4 |
Amendment
|
This
Agreement may not be altered, modified or amended except by written instrument
signed by the parties hereto.
12
| 5.5 |
Notice
|
All
notices, requests, demands and other communications required or permitted to
be
given under the terms of this Agreement shall be in writing and shall be deemed
to have been duly given when delivered by hand or overnight courier, return
receipt requested, postage prepaid, addressed to the other party as set forth
below:
|
If
to Employer:
|
Tankers
Services AS
X.X.
Xxx 0000 Xxxx, 0000 Xxxx, Xxxxxx.
Attn:
Board of Directors
|
|
If
to Executive:
|
Eirik
Ubøe
Jacob
Xxxxxxxxxxx 00
0000
Xxxxx, Xxxxxx
|
The
parties may change the address to which notices under this Agreement shall
be
sent by providing written notice to the other in the manner specified
above.
| 5.6 |
Governing
Law; Jurisdiction;
|
This
Agreement shall be governed by and construed in accordance with the laws of
Norway, and both Employer and Executive submit to the exclusive jurisdiction
of
the Oslo District Court in all matters arising out of or in connection with
this
Agreement.
| 5.7 |
Severability
|
If
any
term, provision, covenant or condition of this Agreement is held by a court
of
competent jurisdiction to be invalid, illegal, void or unenforceable in any
jurisdiction, then such provision, covenant or condition shall, as to such
jurisdiction, be modified or restricted to the extent necessary to make such
provision valid, binding and enforceable, or, if such provision cannot be
modified or restricted, then such provision shall, as to such jurisdiction,
be
deemed to be excised from this Agreement and any such invalidity, illegality
or
unenforceability with respect to such provision shall not invalidate or render
unenforceable such provision in any other jurisdiction, and the remainder of
the
provisions hereof shall remain in full force and effect and shall in no way
be
affected, impaired or invalidated.
| 5.8 |
Survival
|
Subject
to Section 1.1 the rights and obligations of Employer and Executive under the
provisions of this Agreement, including Section 4 and 5 of this Agreement,
shall survive and remain binding and enforceable, notwithstanding any
termination of Executive’s employment with Employer for any reason, to the
extent necessary to preserve the intended benefits of such
provisions.
| 5.9 |
No
Waiver
|
The
failure of a party to insist upon strict adherence to any term of this Agreement
on any occasion shall not be considered a waiver of such party’s rights or
deprive such party of the right thereafter to insist upon strict adherence
to
that term or any other term of this Agreement.
13
| 5.10 |
Counterparts
|
This
Agreement may be signed in counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the
same
instrument.
| 5.11 |
Construction
|
| a. |
The
headings in this Agreement are for convenience only, are not a part
of
this Agreement and shall not affect the construction of the provisions
of
this Agreement.
|
| b. |
For
purposes of this Agreement, the words “include” and “including”, and
variations thereof, shall not be deemed to be terms of limitation
but
rather will be deemed to be followed by the words “without
limitation”.
|
| c. |
For
purposes of this Agreement, the term “person” means any individual,
partnership, company, corporation or other entity of any
kind.
|
| d. |
For
purposes of this Agreement, the term “affiliate”, with respect to any
person, means any other person that controls, is controlled by or
is under
common control with such person.
|
IN
WITNESS WHEREOF, the parties have duly executed this Agreement as of the date
first written above.
TANKERS
SERVICES AS
by
/s/
Ole Xxxxx
Xxxxxx
Name:
Title:
EIRIK
UBØE,
/s/
Eirik
Ubøe
14
