Exhibit 10.8
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT made effective as of the 1st day of
June, 1998, by and between Marine Shuttle Operations, Inc., a Nevada corporation
(the "Corporation"), and Xxxxx Xxxx (the "Employee").
W I T N E S S E T H:
WHEREAS, the Employee desires to be employed by the
Corporation as President upon the terms and conditions hereinafter set forth,
and the Corporation desires that the Employee be so employed.
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:
I. Term of Employment. Subject to the terms and conditions of this
Employment Agreement, the Corporation hereby employs the Employee as President,
and the Employee hereby agrees to serve the Corporation in such capacity for the
period commencing on the date hereof (the "Effective Date") and ending on the
second anniversary of the Effective Date (the "Employment Period"), unless
sooner terminated as hereinafter provided.
2. Scope of Duties. The Employee shall serve as President of the
Corporation, subject to the direction and control of the Board of Directors of
the Corporation (the "Board"). In such capacity, the Employee shall have the
customary powers, responsibilities and authority of presidents of corporations
of the size, type, and nature of the Corporation as it exists from time to time.
The Employee 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 Employment. Except during vacation periods or
absences due to temporary illness, the Employee shall devote so much (but not
less than 75%) 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, the Employee 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. The Employee 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 the Employee 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 Employment Agreement.
4. Compensation. As total compensation for all services to be rendered
by the Employee during the Employment Period, the Employee shall receive a
salary at the rate of One Hundred Thousand Dollars ($100,000) per annum ("Base
Salary"), which Base Salary shall be subject to federal, state, and other tax
withholdings, and which shall be paid monthly in arrears or on such other basis
as other employees of the Corporation generally are paid and which shall be
subject to applicable US-taxes or taxes in the Employee's country of residence.
5. Fringe Benefits. The Employee shall be entitled to participate in
any and all fringe benefits and/or plans made available to other executives of
the Corporation (to the extent the Employee qualifies therefor under the
specific terms and conditions of each such benefit or plan), including, without
limitation, dental/medical insurance and employee benefit plans which are or
which may become available generally to senior management of the Corporation.
The Employee shall be entitled to 25 working days vacation during each year of
the Employment Period, to be taken at such time or times as the reasonable needs
of the Corporation's business shall allow.
6. Reimbursement of Expenses. The Corporation shall reimburse the
Employee for all reasonable expenses incurred in connection with the promotion
of the business of the Corporation, including expenses for travel,
entertainment, and similar expenses incurred by the Employee on the
Corporation's behalf; provided, however, no such reimbursement shall be made
except upon the presentation by the Employee 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.
7. Termination of Employment. The Employee's employment shall terminate
upon the Employee's resignation or death, and may be terminated by the Board on
account of the Employee's Disability (as defined below), for Cause (as defined
below), or without Cause.
(a) If the Employee dies during the term of his employment
hereunder, the Corporation shall be obligated to pay to the Employee's estate
all earned but unpaid Base Salary through the date of his death.
(b) If the Employee shall become physically or mentally
disabled ("Disability") during the term of this Employment 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 the
Employee all earned but unpaid Base Salary due to the Employee hereunder through
the date of such termination.
(c) If the Employee is terminated by the Corporation without
Cause, then,
2
provided that the Employee has not breached the provisions of Sections 8, 9, or
10 hereof, the Employee shall be entitled to receive his Base Salary in equal
monthly installments for a period of twelve months from the date of such
termination.
(d) If the Employee is terminated for Cause or the Employee
resigns, the Employee shall be entitled to receive only his Base Salary through
the date of termination.
(e) As used herein, "Cause" shall mean:
i) the willful failure by the Employee to
substantially perform his duties hereunder
(including, without limitation, the
Employee's refusal to carry out the
directives of the Board provided that such
directives do not offend against a law), for
reasons other than death or disability;
ii) a material breach of this Employment
Agreement by the Employee (including,
without limitation, the breach of any
provision of Sections 8 and/or 9 hereof);
iii) the willful engaging by the Employee in
misconduct materially injurious to the
Corporation;
iv) a breach of the Employee'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.
8. Disclosure of Information.
(a) All memoranda, notes, records, and other documents made or
compiled by the Employee or made available to him during the term of his
employment 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 the Employee's employment. The Employee 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 employment, 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 the
Employee or to the Employee 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,
3
technical information, 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 the Employee 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 the
Employee of the provisions of this Section 8, the Corporation shall be entitled
to an injunction, without being required to post any bond, restraining the
Employee 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 the Employee.
9. Restrictive Covenants.
(a) In light of the unique and valuable services it is
expected the Employee will render to the Corporation, the Employee'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 the Employee will obtain during the course of his employment with
the Corporation, and in consideration of this Agreement and the compensation to
be received by the Employee hereunder, the Employee agrees that for so long as
he is employed by the Corporation 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 the
Employee, the Corporation plans to conduct business within a six (6) month
period.
(b) During the Covenant Period, the Employee 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
4
9, including, without limitation, the time periods and the geographical areas of
the restrictions, are fair and reasonable and do not place any undue hardship on
the Employee, 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 the Employee 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 the
Employee 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 Employment Agreement.
10. Representations.
(a) The Employee represents and warrants to the Corporation
that (i) the execution, delivery and performance of this Employment Agreement by
the Employee 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 Employee is a party or by which he is bound, (ii) the Employee is not
a party to or bound by any employment agreement, non-compete agreement or
confidentiality agreement with any other person or entity, and (iii) upon the
execution and delivery of this Employment Agreement by the Employee, this
Employment Agreement shall be the valid and binding obligation of the Employee,
enforceable against him in accordance with its terms.
(b) The Corporation represents and warrants to the Employee
that (i) the execution, delivery, and performance of this Employment 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 he is bound, and (ii) upon the
execution and delivery of this Employment Agreement by the Corporation, this
Employment Agreement shall be the valid and binding obligation of the
Corporation, enforceable against it in accordance with its terms.
5
11. Miscellaneous.
(a) Notices. All notices required or permitted to be given
under the provisions of this Employment 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 Employment Agreement.
If to the Employee:
Xx. Xxxxx Xxxx
Xxxxxxx Xxx. 00
00000 Xxxxxx, Xxxxxxx
If to the Corporation:
Marine Shuttle Operations, Inc.
0000 Xxxxxxxx Xxxx.
Xxxxxxx, Xxxxx 00000
(b) Successors and Assigns. This Employment 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 Employment Agreement is personal in nature and may not be assigned or
transferred by the Employee 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 Employment 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 Employment 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
Employment 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.
6
(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 Employment Agreement.
(g) Governing Law. This Employment 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
Employment 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
11 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 Employment Agreement on the day and year first above written.
MARINE SHUTTLE OPERATIONS INC.
By:
--------------------------
--------------------------
Xxxxx Xxxx
7
