Date [●], 2010 DHT MARITIME, INC. DHT HOLDINGS, INC. - and - OLE JACOB DIESEN AGREEMENT FOR SERVICES WATSON, FARLEY & WILLIAMS London
Exhibit
4.21
Date [●],
2010
DHT
MARITIME, INC.
- and
-
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
_____________________________________________
_____________________________________________
▇▇▇▇▇▇,
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
London
INDEX
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Clause
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Page
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1
|
DEFINITIONS
AND INTERPRETATION
|
1
|
|
2
|
APPOINTMENT
AND TERMINATION OF EMPLOYMENT
|
2
|
|
3
|
PERIOD
OF APPOINTMENT
|
3
|
|
4
|
DUTIES
OF THE CONSULTANT
|
3
|
|
5
|
COMPLIANCE
|
3
|
|
6
|
CONFIDENTIALITY
|
3
|
|
7
|
CONFLICTS
OF INTEREST
|
4
|
|
8
|
NO
EMPLOYMENT OR PARTNERSHIP
|
4
|
|
9
|
FEE
|
5
|
|
10
|
EXPENSES
|
5
|
|
11
|
COVENANTS
|
5
|
|
12
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LIABILITY
AND INDEMNITY
|
7
|
|
13
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AUTHORITY
|
7
|
|
14
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TERMINATION
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7
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15
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EFFECT
OF TERMINATION
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7
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16
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NOTICES
|
8
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17
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ANCILLARY
PROVISIONS
|
8
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18
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GOVERNING
LAW AND JURISDICTION
|
9
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SCHEDULE
A SERVICES
|
10
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SCHEDULE
B WAIVER OF CLAIMS
|
11
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THIS AGREEMENT is made
on [●], 2010
BY AND AMONG:
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(1)
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DHT MARITIME, INC.,
whose registered office is at ▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇;
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(2)
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DHT HOLDINGS, INC.,
whose registered office is at ▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇; and
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(3)
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▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ of
Krags vei 10, 0783 Oslo, Norway
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IT IS AGREED as
follows:
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1
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DEFINITIONS
AND INTERPRETATION
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1.1
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In
this Agreement, unless the context otherwise expressly requires, the
following expressions shall have the following
meanings:
|
“Agreement” means this
Agreement;
“Appointment” means the
appointment of the Consultant in accordance with this Agreement;
“Board” means the board of
directors of Maritime (as defined below) and Holdings (as defined below) or any
duly authorised committee thereof;
“Cause” means: (i) the
Consultant’s failure to perform the Services; (ii) the
Consultant’s gross negligence, dishonesty or wilful misconduct in connection
with his performance of the Services hereunder or any act or omission that is
injurious to the financial condition or business reputation of the Company or
any Group Company; or (iii) the Consultant’s breach of the provisions of
Clauses 6, 7, and/or 11 of this Agreement;
“Commencement Date” means 1
April 2010;
“Company” means collectively,
DHT Maritime, Inc., a company incorporated under the laws of the Republic of the
▇▇▇▇▇▇▇▇ Islands (“Maritime”) and DHT Holdings,
Inc., a company incorporated under the laws of the Republic of the ▇▇▇▇▇▇▇▇
Islands (“Holdings”);
“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;
“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 the Company
relating to the business, operations, products or services of the Company 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, the Company), 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 the Company, 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 the Consultant in breach of this
Agreement or in breach of any similar covenant made by the Consultant or any
other duty of confidentiality;
“Consultant” means ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ of ▇▇▇▇▇ ▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇;
“Contract of Employment” means
the employment contract entered into with effect from 16 April 2008 between
Maritime as employer and the Consultant as employee and terminated under this
Agreement;
“Disability” means the
inability of the Consultant, due to illness, accident or any other physical or
mental incapacity, to perform the Services in a normal manner for a period of 60
days (whether or not consecutive) during the Appointment. The Board
shall determine, on the basis of the facts then available, whether and when the
Disability of the Consultant has occurred. Such determination shall
take into consideration the expert medical opinion of a physician mutually
agreeable to the Company and the Consultant based upon such physician’s
examination of the Consultant. The Consultant agrees to make himself
available for such examination upon the reasonable request of the
Company;
“Fee” means the fee to be paid
by the Company to the Consultant in accordance with Clause 6.1;
“Group” means the Group
Companies collectively;
“Group Company” means the
Company, any subsidiary of the Company, the holding company of the Company and
any subsidiary of such holding company;
“holding company” and “subsidiary” shall
have the respective meanings ascribed to such expressions by section 1159
of the Companies Act 2006;
“Restricted Period” means a
period commencing on the date of the Commencement Date and terminating one year
from the date of termination of the Appointment for any reason. The
Restricted Period shall be deemed automatically extended by any period in which
the Consultant is in violation of the provisions of Clauses 6, 7, and/or 11;
and
“Services” means the services
to be provided in accordance with Clause 2.2 as set out in Schedule
1.
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1.2
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The
headings in this Agreement are for convenience only and are not to be used
as an aid to construction of this
Agreement.
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1.3
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Reference
to provisions of statutes, rules or regulations shall be deemed to include
references to such provisions as amended, modified or re-enacted from time
to time.
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2
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APPOINTMENT
AND TERMINATION OF EMPLOYMENT
|
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2.1
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The
Company hereby engages the Consultant and the Consultant hereby accepts
such engagement on the terms and conditions of this
Agreement.
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2
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2.2
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The
Consultant shall be available to the Company for the provision of the
Services.
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2.3
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The
Consultant shall provide the Services at the location agreed between the
Company and the Consultant. In the event the parties do not
agree, then the Consultant shall be directed to provide the Services from
the Company’s registered offices in
Jersey.
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2.4
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The
Consultant shall not be required to provide the Services on 25 days per
calendar year (pro-rated for any partial calendar year) or on any public
holidays in his normal place of residence. Days on which the
Consultant shall not provide services in accordance with this Clause shall
be taken at such reasonable time or times as the Board may
approve.
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2.5
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It
is agreed that the Consultant’s previous employment with the Company is
terminated by mutual agreement with effect from the date of this Agreement
and that the Consultant shall not be entitled to any of the benefits upon
termination provided for in the Contract of
Employment.
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2.6
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The
termination of the Consultant’s employment shall not operate so as to
trigger the provisions relating to vesting or forfeiture in the Award
Agreements covering stock awards granted to him pursuant to the Contract
of Employment and the Company's Long Term Incentive
Plan. References in the relevant Award Agreements to
“termination of employment” in the provisions relating to vesting or
forfeiture shall be read as a reference to the termination of the
Appointment under this Agreement.
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3
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PERIOD
OF APPOINTMENT
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3.1
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The
Appointment shall commence on the Commencement Date and, subject to
Clause 13, shall continue for a period of six months thereafter,
following which it will terminate, unless terminated earlier on the expiry
of not less than two weeks’ notice in writing given by the Company to the
Consultant expiring at any time.
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4
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DUTIES
OF THE CONSULTANT
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4.1
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The
Consultant shall exercise all proper skill and care and proper
professional and technical expertise and judgment in the performance of
the Services.
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4.2
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The
Consultant shall at all times keep the Board or any other persons as it
may nominate promptly and fully informed (in writing if so requested) of
his performance of the Services and provide such explanations as it may
require in connection therewith.
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4.3
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The
Consultant shall cooperate and, where required, work with any contractors
doing business with the Company.
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5
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COMPLIANCE
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5.1
|
The
Services to be provided to the Company shall be provided by the Consultant
in compliance with all relevant legislation, regulations, codes of
practice, guidance and other requirements of any relevant government or
governmental agency. To the extent that such regulations are
advisory rather than mandatory, the standard of compliance to be achieved
by the Consultant shall be best practice of the relevant
industry.
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5.2
|
The
Consultant shall acquaint himself with any working practices, rules or
procedures applicable to any location where the Consultant is required to
perform the Services.
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3
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6
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CONFIDENTIALITY
|
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6.1
|
The
Consultant acknowledges that, in the performance of the Services
hereunder, he may be given access to Confidential
Information. The Consultant agrees that all Confidential
Information has been, is and will be the sole property of the Company and
that the Consultant has no right, title or interest
therein. The Consultant shall not, without prejudice to his
common law duties, 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 the
Appointment (whether acquired prior to or subsequent to the execution of
this Agreement or the Commencement Date) or otherwise, except that the
Consultant may (i) utilize and disclose Confidential Information as
required in the performance of the Services hereunder in good faith,
subject to any restriction, limitation or condition placed on such use or
disclosure by the Company, and (ii) disclose Confidential Information to
the extent required by applicable law or as ordered by a court of
competent jurisdiction.
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6.2
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All
notes, memoranda, records, tapes, discs, writings and designs of any Group
Company or made or received by the Consultant relating to the business of
any Group Company shall be and remain the property of the relevant Group
Company and shall be handed over by the Consultant to the Company from
time to time on demand, and in any event, upon the termination of the
Appointment.
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6.3
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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 the Consultant or
otherwise, in the Consultant’s possession shall be and remain the
exclusive property of the Company, and the Consultant shall not directly
or indirectly assert any interest or property rights therein. Upon
termination of the Appointment for any reason, and upon the request of the
Company at any time, the Consultant will immediately deliver to the
Company 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 the Consultant
will not retain, or cause or permit to be retained, any copies or other
embodiments of such materials.
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7
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CONFLICTS
OF INTEREST
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7.1
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The
Consultant shall immediately disclose any potential or actual conflict of
interest to the Company which arises in relation to the provision of the
Services as a result of any present or future appointment, employment or
other interest of the Consultant. The Consultant shall comply
with the directions of the Company regarding the management and resolution
of any potential conflict of
interest.
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7.2
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During
the Appointment, the Consultant shall not, directly or indirectly, without
the prior consent of the Company (such consent not to be unreasonably
withheld) engage in any employment or other activity that is competitive
with or adverse to the business, practice or affairs of the Company or any
Group Company, whether or not such activity is pursued for profit or other
advantage, or that would conflict or interfere with the performance of the
Services hereunder, provided that
the Consultant 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. The Board has
consented to the Consultant serving as a director in any of the companies
of the I.M. Skaugen Group and any of the companies of the FSN Capital
Group. The Consultant shall resign from or terminate all
positions, relationships and activities that would be inconsistent with
the foregoing.
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8
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NO
EMPLOYMENT OR PARTNERSHIP
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8.1
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This
Agreement constitutes a contract for the provisions of services and
nothing contained in this Agreement shall be construed or have effect as
constituting any relationship of employment, partnership or principal and
agent between the Company (or any member of the
Group).
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4
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8.2
|
The
parties agree to use their best endeavours to ensure that the Services are
not provided in a manner which might be anticipated to cause adverse tax
consequences for either the Company or the
Consultant.
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9
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FEE
|
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9.1
|
The
consideration for the provision of the Services to the Company by the
Consultant shall be a monthly fee of US$50,000 payable monthly in arrears,
on the last working day of each month against delivery of the Consultant's
invoice setting out the fee.
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9.2
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The
Company shall pay the Consultant within 14 days of receipt of each
invoice by bank transfer to the Consultant's account at a bank to be
nominated by the Consultant by written notice to the
Company.
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10
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EXPENSES
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10.1
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There
shall be refunded to the Consultant such sums as shall cover all
reasonable out-of-pocket expenses wholly and exclusively incurred by him
in the proper performance of the Group's business including, but not
limited to, (i) expenses of entertainment, subsistence and travelling,
which expenses shall be evidenced in such manner as the Board may from
time to time require, and (ii) agreed accommodation costs of CHF 3,333 per
calendar month.
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11
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COVENANTS
|
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11.1
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The
Consultant acknowledges that the Company 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 the Company has a legitimate business
interest and right in protecting those assets as well as any similar
assets that the Company may develop or obtain following the Commencement
Date. The Consultant acknowledges and agrees that the
restrictions imposed upon him 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 the Consultant from earning an
adequate and reasonable livelihood and supporting his dependants without
violating any provision of this Agreement. The Consultant
further acknowledges that the Company would not have agreed to enter into
this Agreement without the Consultant’s agreeing to enter into, and to
honour the provisions and covenants of, Clauses 6, 7 and this Clause
11. Therefore, the Consultant agrees that, in consideration of
the Company’s entering into this Agreement and the Company’s obligations
hereunder and other good and valuable consideration, the receipt of which
is hereby acknowledged by the Consultant, the Consultant shall be bound
by, and agrees to honour and comply with, the provisions and covenants
contained in Clauses 6, 7 and this Clause 11 following the Commencement
Date.
|
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11.2
|
For
purposes of Clauses 6, 7 and this Clause 11, the term “Company” includes
the Company and each Group Company, and its and their predecessors,
successors and assigns.
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11.3
|
After
the date hereof, the Consultant shall not, whether in writing or orally,
criticize or disparage the Company, its business or any of its customers,
clients, suppliers or vendors or any of its current or former,
stockholders, directors, officers, employees, agents or representatives or
any affiliates, directors, officers or employees of any of the foregoing,
provided that the Consultant may provide critical assessments of the
Company to the Company during the
Appointment.
|
5
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11.4
|
The
Consultant shall not at any time during or after the termination of the
Appointment make or cause to be made any untrue or misleading statement in
relation to the Company or the Group nor, in particular, after the
termination of the Appointment represent himself as being connected with
the Group.
|
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11.5
|
For
the Restricted Period the Consultant shall not directly or indirectly,
without the prior written consent of the
Board:
|
|
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(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;
|
|
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(ii)
|
(A)
solicit any person that is a customer or client (or prospective customer
or client) of the Company or any Group Company to purchase any goods or
services of the type sold by the Company or any Group Company from any
person other than the Company or any Group Company or to reduce or refrain
from doing (or otherwise change the terms or conditions of) any business
with the Company or any Group Company, (B) interfere with or damage (or
attempt to interfere with or damage) any relationship between the Company
or any Group Company and their respective employees, customers, clients,
vendors or suppliers (or any person that the Company or any Group Company
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
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(iii)
|
form,
or acquire a two (2%) percent or greater equity ownership, voting or
profit participation interest in, any
Competitor.
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11.6
|
The
Consultant agrees that any breach by him of any of the provisions of
Clauses 6, 7 and/or this Clause 11 shall cause irreparable harm to the
Company that could not be adequately compensated by monetary damages and
that, in the event of such a breach, the Consultant shall waive the
defence in any action for injunctive relief that a remedy at law would be
adequate, and the Company shall be entitled to (a) enforce the terms and
provisions of Clauses 6, 7 and/or this Clause 11 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 Clause 15), in each case in
addition to any other remedy to which the Company may be entitled at law
or in equity. Without limiting the generality of the foregoing,
in any proceeding in which the Company seeks enforcement of this Agreement
or seeks relief from the Consultant’s violation of this Agreement and the
Company prevails in such proceeding, the Company shall be entitled to
recover from the Consultant all litigation costs and attorneys’ fees and
expenses incurred by the Company in any suit, action or proceeding arising
out of or relating to this
Agreement.
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11.7
|
The
Consultant represents and warrants to the Company that the execution and
delivery of this Agreement by the Consultant and the performance by the
Consultant of the Services 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 the Consultant is
a party or otherwise bound.
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11.8
|
Following
the termination of the Appointment, the Consultant shall provide
reasonable assistance to and cooperation with the Company in connection
with any suit, action or proceeding (or any appeal therefrom) relating to
acts or omissions that occurred during the Appointment. The
Company shall reimburse the Consultant for any reasonable expenses
incurred by the Consultant in connection with the provision of such
assistance and cooperation.
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6
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12
|
LIABILITY
AND INDEMNITY
|
|
12.1
|
The
Consultant shall keep the Company indemnified and held harmless from and
against all actions, proceedings, costs, expenses, loss and damage
whatsoever arising out of or in connection with the performance of the
Services by the Consultant or any breach of this
Agreement.
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12.2
|
The
Company or any Group Company may at its option satisfy such indemnity (in
whole or in part) by way of deduction from any payments due to the
Consultant.
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12.3
|
The
Consultant shall pay all tax and/or social security contributions on a
self-employed basis.
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12.4
|
The
Consultant shall fully co-operate with the Company or any Group Company on
all tax compliance issues.
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12.5
|
In
the event that the Company or any Group Company is required to pay any
income tax and/or social security contributions in respect of the
Consultant to any relevant taxing authority in any relevant jurisdiction,
the Consultant shall, at the written request of the Company or any Group
Company, immediately pay to the Company or any Group Company an amount
equal to the said income tax and/or social security contributions and/or
give credit for any income tax already paid by the
Consultant. However, it is agreed that no payment of any such
income tax and/or social security contributions shall be made to such
taxing authority without particulars of the proposed payment being given
to the Consultant as soon as reasonably practicable, and the Consultant
being given a reasonable opportunity at his own expense, to dispute any
such payment.
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13
|
AUTHORITY
|
|
13.1
|
The
Consultant shall not hold himself out as having power to nor shall he
purport to bind the Company in any way
whatsoever.
|
|
14
|
TERMINATION
|
|
14.1
|
Either
party may terminate this Agreement forthwith by sending a written notice
to the other if:
|
|
(a)
|
that
other commits a material breach of its obligations under this Agreement
and, in the case of a breach capable of remedy such breach is not remedied
within 14 days of that other party being specifically required to do so;
or
|
|
(b)
|
that
other ceases to pay its debts or becomes unable to pay its debts within
the meaning of Section 123 of Part II of the Insolvency Act
1985;
|
|
(c)
|
that
other disposes of the whole or any substantial part of its undertaking or
assets; or
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(d)
|
that
other ceases or threatens to cease to carry on all or any substantial part
of its business.
|
|
14.2
|
The
Company may terminate this Agreement forthwith by sending a written notice
to the Consultant if the Consultant shall be guilty of
Cause.
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15
|
EFFECT
OF TERMINATION
|
|
15.1
|
Any
termination of this Agreement shall be without prejudice to any rights or
liabilities of the parties which have accrued on or before the date of
termination.
|
7
|
15.2
|
(i)
If the Company terminates this Agreement for any reason other than (a)
Cause or (b) the Consultant’s death or Disability; or (ii) upon expiry of
the term of this Agreement in accordance with Clause 3 (save where the
Consultant is at the relevant time guilty of Cause), then in addition to
any right of the Consultant to notice pursuant to Clause 3: (A) the
Company shall pay to the Consultant within 14 days of the date of
termination of the Appointment a lump sum equal to US $900,000 less the fees paid to
the Consultant under this Agreement; (B) Holdings shall grant or transfer
to the Consultant 50,000 shares of its common stock for nil consideration;
and (C) all outstanding equity-based compensation granted to the
Consultant during his previous employment with the Company shall vest and
become exercisable on the effective date of the termination of the
Appointment, subject to the other terms and conditions of such grants,
provided
that the Company shall not be obligated to make any payment under this
Clause 15.2, and the Consultant shall not be entitled to any such
acceleration, until such time as the Consultant has provided an
irrevocable waiver and general release of claims (other than the
Consultant’s rights under this Clause 15.2), in favour of the Company and
each Group Company, and their respective directors, officers, employees,
agents and representatives in the form attached as Schedule B hereto;
provided,
further,
that the Company shall be entitled to cease making, and the Consultant
shall forfeit any entitlement to receive, such payments in the event that
the Consultant breaches any of his obligations under Clauses 6 and/or
11.
|
|
15.3
|
This
Agreement shall terminate immediately upon the Consultant’s death or
Disability with no requirement for notice in accordance with Clause
3. In the event the Appointment employment terminates due to
the Consultant’s death or Disability, then: (A) the Company shall pay to
the Consultant (or, in the event of termination by reason of the
Consultant’s death, to his personal representatives) within 14 days of the
date of termination of the Appointment a lump sum equal to US $900,000
less the fees paid
to the Consultant under this Agreement; and (B) Holdings shall grant or
transfer to the Consultant (or, in the event of termination by reason of
the Consultant’s death, to his personal representatives) 50,000 shares of
its common stock for nil
consideration.
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|
15.4
|
Termination
of this Agreement shall not affect the continuing enforceability of
Clauses 6, and/or 11.
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|
16
|
NOTICES
|
|
16.1
|
Any
notice or other document to be given under this Agreement shall be in
writing and shall be deemed fully
given:
|
|
(a)
|
if
left at or sent by (i) first class post or airmail or (ii) facsimile
transmission or other means of telecommunication in permanent writing form
to the address shown on the face hereof or other such address and/or
number as either party may by notice to the other expressly substitute
therefor; and
|
|
(b)
|
when
in the ordinary course of the means of transmission it would first be
received by the addressee in normal business
hours.
|
|
16.2
|
In
proving the giving of a notice it shall be sufficient to prove that the
notice was left or that the envelope containing such notice was properly
addressed and despatched or, as the case may be, electronically
acknowledged.
|
|
17
|
ANCILLARY
PROVISIONS
|
|
17.1
|
Assignment. Neither
party shall assign, encumber or dispose of any of its rights and
obligations under this Agreement without the prior written consent of the
other party which shall not be unreasonably
withheld.
|
8
|
17.2
|
Severability. If
any part of this Agreement is found by a court or other competent
authority to be invalid, unlawful or unenforceable then such part shall be
severed from the remainder of this Agreement which shall continue to be
valid and enforceable to the fullest extent permitted by
law.
|
|
17.3
|
Waiver. No
delay or failure by either party to exercise any of its powers, rights or
remedies under this Agreement shall operate as a waiver of them, nor shall
any single or partial exercise of any such powers, rights or remedies
preclude any other or further exercise of them. The remedies
provided in this Agreement are cumulative and are not exclusive of any
remedies provided by law.
|
|
17.4
|
Entire
Agreement.
|
|
(a)
|
This
Agreement supersedes any agreements made or existing between the parties
before or simultaneously with this Agreement (all of which shall be deemed
to have been terminated by mutual consent with effect from the date of
this Agreement) and constitutes the entire understanding between the
parties in relation to the subject matter of this
Agreement.
|
|
(b)
|
Except
as otherwise permitted by this Agreement, no change to its terms shall be
effective unless it is in writing and signed by or on behalf of both
parties.
|
|
18
|
GOVERNING
LAW AND JURISDICTION
|
|
18.1
|
This
Agreement shall be governed by and interpreted in accordance with English
law and the parties hereby submit to the jurisdiction of the courts of
England and Wales.
|
SIGNED by
for and
on behalf of DHT Maritime, Inc.
| Date | ||||
SIGNED by
for and
on behalf of DHT Holdings, Inc.
| Date | ||||
SIGNED by the
Consultant
| Date | ||||
9
SCHEDULE A
SERVICES
The
Consultant shall provide the following services to the
Company:
|
1
|
Act
as the Company’s co-ordinator on the Moonbeam project, reporting to the
chairman of the Board.
|
|
2
|
Working
with the Company’s chief executive officer on outstanding corporate
restructuring issues.
|
|
3
|
Together
with the Company’s chief executive officer, conducting technical
supervision of the Group’s vessels.
|
|
4
|
Such
other projects as may be requested by the Company’s chief executive
officer and agreed with the Consultant from time to
time.
|
10
SCHEDULE B
WAIVER OF
CLAIMS
Date
[●]
2010
DHT
MARITIME, INC.
- and
-
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
_____________________________________________
WAIVER
OF CLAIMS
_____________________________________________
11
INDEX
|
Clause
|
Page
|
|
1
|
DEFINITIONS
AND INTERPRETATION
|
13
|
|
2
|
TERMINATION
DATE
|
14
|
|
3
|
AMOUNT
OF COMPENSATION
|
14
|
|
4
|
DATE
OF PAYMENT
|
14
|
|
5
|
SETTLEMENT
|
14
|
|
6
|
INDEMNITY
|
14
|
|
7
|
CONTINUATION
IN FORCE OF CONSULTANCY AGREEMENT
|
15
|
|
8
|
RESIGNATION
OF DIRECTORSHIPS
|
15
|
|
9
|
CONFIDENTIALITY
|
15
|
|
10
|
EQUITABLE
RELIEF
|
15
|
|
11
|
WARRANTY
|
16
|
|
12
|
BAR
TO FURTHER PROCEEDINGS
|
16
|
|
13
|
THIRD
PARTY RIGHTS
|
16
|
|
14
|
GOVERNING
LAW
|
16
|
|
SCHEDULE
A FORM OF LETTER OF RESIGNATION
|
18
|
12
Waiver
of Claims
THIS AGREEMENT is made
on [●]
2010
BY AND AMONG:
|
(1)
|
DHT Maritime, Inc. of ▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇, Channel Islands (“Maritime”);
|
|
(2)
|
DHT Holdings, Inc. of ▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇, Channel Islands (“Holdings” and, together
with Maritime, the “Company”);
and
|
|
(3)
|
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ of
▇▇▇▇▇ ▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ (the “Consultant”)
|
PRELIMINARY:
|
(A)
|
The
Consultant was employed by the Company under the terms of an employment
agreement effective as of 16 April 2008, which terminated on 31 March 2010
by mutual agreement, and the Consultant was subsequently engaged by the
Company as a consultant under the terms of a consultancy agreement dated
[date] (the “Consultancy
Agreement”).
|
|
(B)
|
The
Consultant’s engagement under the Consultancy Agreement is to terminate on
[date] (the “Termination
Date”) and the parties wish to enter into a waiver of claims in
respect of the Consultant’s employment and subsequent engagement as a
consultant with the Company and the terminations
thereof.
|
IT IS AGREED as
follows:
|
1
|
DEFINITIONS
AND INTERPRETATION
|
|
1.1
|
In
this Agreement, unless the context otherwise expressly requires, the
following expressions shall have the following
meanings:
|
“Agreement”
means this Agreement;
“Board”
means the board of directors of each of Maritime and Holdings or any duly
authorised committee thereof;
“Group”
means the Group Companies collectively;
“Group
Company” means the Company, any subsidiary of the Company, the holding
company of the Company and any subsidiary of such holding company;
and
“holding
company” and
“subsidiary”
shall have the respective meanings ascribed to such expressions by
section 1159 of the Companies Act 2006.
|
1.2
|
References
in this Agreement to clauses and the schedules are, unless otherwise
stated, to clauses of and schedules to this
Agreement.
|
|
1.3
|
The
headings in this Agreement are for convenience only and are not to be used
as an aid to construction of this
Agreement.
|
|
1.4
|
Reference
to provisions of statutes, rules or regulations shall be deemed to include
references to such provisions as amended, modified or re-enacted from time
to time.
|
13
|
2
|
TERMINATION
DATE
|
|
2.1
|
The
Consultant agrees that his engagement as a consultant with the Company
shall terminate on the Termination Date and the Consultant has received
all sums due to him up to and including the Termination
Date.
|
|
3
|
AMOUNT
OF COMPENSATION
|
|
3.1
|
The
Company shall, in accordance with the provisions of Clause 16.2 of the
Consultancy Agreement, and subject to and conditional upon the conditions
set out in Clauses 5 to 11, pay the Consultant or otherwise
compensate him as follows:
|
|
(a)
|
the
Company shall pay the Consultant the sum of US$[●] (the
“Lump Sum”);
and
|
|
(b)
|
Holdings
shall grant or transfer into the Consultant’s ownership 50,000 shares of
its common stock for nil consideration;
and
|
|
(c)
|
the Company shall procure that
all outstanding equity-based compensation granted to the Consultant during
his previous employment with the Company shall vest and become exercisable
from the Termination Date, subject to the other terms and conditions of
such grants.
|
|
4
|
DATE
OF PAYMENT
|
|
4.1
|
The
Lump Sum will be paid to the Consultant within fourteen days of the
Termination Date or the date hereof, whichever is the
later.
|
|
4.2
|
The
shares of common stock in Holdings referred to in Clause 3.1(b) shall be
granted or transferred into the Consultant’s ownership within fourteen
days of the Termination Date or the date hereof, whichever is the
later.
|
|
4.3
|
The
payments and arrangements set out in Clauses 3 and 4 shall be
referred to as the “Compensation
Package”.
|
|
5
|
SETTLEMENT
|
|
5.1
|
The
Compensation Package shall be paid in full and final settlement of all and
any claims which the Consultant has or may have against the Company or any
other Group Company arising out of his employment with the Company or its
termination and/or out of his consultancy with the Company or its
termination, whether contractual or statutory in whatsoever jurisdiction
and the Consultant agrees, without prejudice to the foregoing, that the
Compensation Package shall be offset against any award arising from any
such claim. Statutory claims shall include but not be limited
to any claim under any statutory protection in any jurisdiction afforded
to the Consultant by virtue of his employment and/or consultancy with the
Company or the termination(s)
thereof.
|
|
6
|
INDEMNITY
|
|
6.1
|
The
parties agree to use their best endeavours to ensure that the Compensation
Package is not delivered in a manner which might be anticipated to cause
adverse tax consequences for either the Company or the
Consultant.
|
|
6.2
|
In
the event that the Company or any Group Company is required to pay any
income tax and/or social security contributions in respect of the
Compensation Package to any relevant taxing authority in any relevant
jurisdiction, the Consultant shall, at the written request of the Company
or any Group Company, immediately pay to the Company or any Group Company
an amount equal to the said income tax and/or social security
contributions and/or give credit for any income tax already paid by the
Consultant. However, it is agreed that no payment of any such
income tax and/or social security contributions shall be made to such
taxing authority without particulars of the proposed payment being given
to the Consultant as soon as reasonably practicable, and the Consultant
being given a reasonable opportunity at his own expense, to dispute any
such payment.
|
14
|
6.3
|
The
Consultant hereby authorises any Group Company to deduct from any monies
payable by such Group Company to him or to a company owned by him any sums
owed by him pursuant to this Agreement to that or any other Group
Company.
|
|
7
|
CONTINUATION
IN FORCE OF CONSULTANCY AGREEMENT
|
|
7.1
|
Notwithstanding
the termination of his engagement as a consultant of the Company, it is
affirmed by the Consultant that Clauses 6 and 11 of the Consultancy
Agreement shall continue in full force and effect for the period or
periods specified therein, and that he shall comply with the provisions of
those Clauses for the period or periods specified
therein.
|
|
7.2
|
Without
prejudice to the provisions of Clause 7.1 above, the Consultant shall, on
the Termination Date, comply with the provisions of Clauses 6.2 and 6.3 of
the Consultancy Agreement regarding the return of Company
property.
|
|
8
|
RESIGNATION
OF DIRECTORSHIPS
|
|
8.1
|
The
Consultant shall not later than the Termination Date resign from any
offices held by him in any company in the Group together with any other
offices or memberships held by him by virtue of his employment or
consultancy with the Company. In each case his letter of
resignation shall be in the form of Schedule A. Should the
Consultant fail to resign within seven days of being so requested, the
Company’s chief financial officer is irrevocably appointed as his attorney
to sign on his behalf any document or do any thing necessary or requisite
to give effect thereto.
|
|
9
|
CONFIDENTIALITY
|
|
9.1
|
The
Consultant agrees to keep the terms of this waiver of claims strictly
confidential and agrees not to disclose these terms to any third
party. The Consultant agrees that he will not disclose any
information regarding the terms of this waiver of claims nor give any
interview or make any statement to any person, television company, radio
station, newspaper, magazine or other media organisation save and except
as required by law and save and except that he will be permitted to
disclose this information to his spouse and to professional advisers
confidence.
|
|
10
|
EQUITABLE
RELIEF
|
|
10.1
|
The
Consultant agrees that any breach by him of any of the provisions of
Clauses 6 and/or 11 of the Consultancy Agreement, and/or Clauses 5 and/or
7 to 9 of this Agreement shall cause irreparable harm to the Company that
could not be adequately compensated by monetary damages and that, in the
event of such a breach, the Consultant shall waive the defence in any
action for injunctive relief that a remedy at law would be adequate, and
the Company shall be entitled to (a) enforce the terms and provisions of
Clauses 6 and/or 11 of the Consultancy Agreement, and/or Clauses 5 and/or
7 to 9 of this Agreement 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, in
each case in addition to any other remedy to which the Company may be
entitled at law or in equity. Without limiting the generality
of the foregoing, in any proceeding in which the Company seeks enforcement
of this Agreement or seeks relief from the Consultant’s violation of this
Agreement and the Company prevails in such proceeding, the Company shall
be entitled to recover from the Consultant all litigation costs and
attorneys’ fees and expenses incurred by the Company in any suit, action
or proceeding arising out of or relating to this
Agreement.
|
15
|
11
|
WARRANTY
|
|
11.1
|
The
Consultant warrants that:
|
|
(a)
|
he
has voluntarily entered into this Agreement and without any duress from
the Company;
|
|
(b)
|
other
than as set out in this Agreement the Company has not made any promises,
representations or inducements to him to enter in to this
Agreement;
|
|
(c)
|
he
has had full opportunity to consult his legal advisers concerning the
nature, effect and extent of this Agreement;
and
|
|
(d)
|
he
is aware that the Company is relying on this warranty in executing this
Agreement.
|
|
12
|
BAR
TO FURTHER PROCEEDINGS
|
|
12.1
|
The
Company and the Group are at liberty to plead this Agreement in any court
of law, tribunal or in any other proceedings arising out of or touching on
or concerning the matters referred to or contained in this Agreement as a
bar to such proceedings.
|
|
13
|
THIRD
PARTY RIGHTS
|
|
13.1
|
The
Company executes this Agreement as the agent and trustee for the Group and
holds the rights of each member of the Group on trust. This
Agreement may be enforced by any Group Company subject to and in
accordance with the terms of this Agreement and the Contracts (Rights of
Third Parties) Act 1999. Nothing in this Agreement confers on
any third party any benefits under the provisions of the Contracts (Rights
of Third Parties) Act 1999.
|
|
14
|
GOVERNING
LAW
|
|
14.1
|
This
Agreement shall be governed by and interpreted in accordance with English
law and the parties hereby submit to the jurisdiction of the courts of
England and Wales.
|
|
Signed
|
||
|
for
and on behalf of DHT Maritime,
Inc.
|
|
Signed
|
||
|
for
and on behalf of DHT Maritime,
Inc.
|
This Agreement has been executed by the Consultant as a Deed and has, on the date stated at the beginning of this Deed, been delivered as a Deed.
|
SIGNED AS A
DEED
|
)
|
|
on
the date hereof
|
)
|
|
by
the Consultant
|
)
|
|
in
the presence of:
|
)
|
16
SCHEDULE A
FORM OF
LETTER OF RESIGNATION
[Date]
|
To:
|
The
Directors
|
|
[●] (the
“Company”)
|
|
From:
|
[●]
|
Dear
Sirs
I hereby
confirm my resignation from my directorship of the Company. I confirm
that I have no claims for compensation in connection with such
resignation.
Yours
faithfully
17