EMPLOYMENT AGREEMENT between Tankers Services AS and Tom R. Kjeldsberg
Exhibit
4.11
between
Tankers
Services AS
and
Xxx
X. Kjeldsberg
1
This
employment agreement (the “Agreement”)
has
been made on this 19th day of March, 2007, 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.
Xxx
X. Kjeldsberg,
an
individual having his address in Xxxxxxxxx 00, 0000 Xxxx, Xxxxxx
(“Executive”).
WHEREAS
A.
Employer
desires to employ Executive as its Senior Vice President, Business Development;
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 19 March 2007.
1.2 Commencement
The
Executive’s employment under this Agreement shall commence on 1 July 2007, or
such earlier date as the parties shall agree, and shall remain until terminated
by one of the
parties.
1.3 Position
During
the Term, Employer shall employ Executive, and Executive shall serve, as
Senior
Vice President, Business Development of the Employer reporting to the Chief
Executive Officer (the “CEO”) of the Employer’s Parent Company, Double Hull
Tankers Inc. (the “Parent Company”).
The
Executive will be responsible for identifying, developing and executing
corporate transactions and other strategic projects within the group’s strategy
as defined by the Board of the Parent Company, and such other responsibilities
as assigned by the CEO from time to time.
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.
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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 extensively and worldwide from time to time, including
to
the offices of the Parent Company in the Channel Islands.
2.
Compensation
2.1
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 NOK 1,500,000, inclusive of compensation for
overtime. The Salary is payable monthly to a bank account specified by
Executive.
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 or death benefits), fringe benefits of
perquisites, except as otherwise set forth herein or statutorily required
by
Norwegian law.
Executive
is not entitled to separate compensation for the board positions performed
in
accordance with Clause 1.3 above unless agreed with the Board.
2.2
Equity
Awards
The
Executive is, at the discretion of the board of the Parent Company, eligible
for
equity awards under the Group Incentive Compensation Plan and will, subject
to
approval by the board of the Parent Company and pursuant to said incentive
compensation plan receive, restricted shares of Parent Company’s common stock
(“Restricted Stock”) having an aggregate grant-date value of NOK 750,000
(Initial Grants) which will vest pro-rata over three years each May. The
Initial
Grants and the other terms and conditions thereof will be evidenced by award
agreements to be entered into by Executive and Parent Company whereas 1/3
of the
Restricted Stock will vest on time basis and 2/3 will vest according to a
hurdle
based on total return to shareholders as further set out in the Group Incentive
Compensation Plan. During the vesting period the Executive will be credited
with
an additional number of Restricted Stock representing those dividends which
would have been paid on the award during the vesting period. These additional
shares will also be transferred to the Executive on the vesting of the
Restricted Stock to which they relate.
2.3
Cash
Awards
The
Executive may receive a discretionary cash bonus award which is determined
annually by the Board on the recommendation of the Compensation Committee.
The
annual cash bonus award will range from 0 % to a maximum of 100 % of the
annual
salary. The target award shall be 50 % of the annual salary. The target award
is
subject to the achievement of the objectives of the agreed business and
financial plan, as well as having performed the scope of the job
responsibilities in a highly satisfactory manner. The Executive shall be
eligible for a cash bonus for the calendar year 2007, irrespective of the
fact
that he will not have been employed for the full year.
2.4
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.
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2.5
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.
2.6
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;
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
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 three -3- months. 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
The
notice period in case of termination by the Employer shall be three -3-
months.
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.
4
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”).
3.5
Termination
by Employer Other Than for Cause
a.
If (i) Employer elects to terminate Executive’s employment for any reason
other than Cause (as defined below) Employer shall continue to pay
Executive’s Salary for one -1- year from the effective date of Executive’s
termination of employment, and in the event of a termination pursuant to
clause (i), all equity-based compensation granted to Executive pursuant to
Clause 2.3 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, in favour 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 January 31, 2006 as subsequently
amended (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.
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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 six months following a Change of Control, Executive may at
the
Board’s sole discretion be awarded a cash compensation of 200% of the
Executive’s annual base salary upon the effective date of Executive’s
termination of employment, if the Board determines that the Executive has
made a
significant contribution to the transaction which has resulted in the Change
of
Control occurring.
b. For purposes of this
Agreement, the term
(i)
“Change
of Control”
shall
mean the occurrence of any of the following events:
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;
6
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 CEO, (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.
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.
7
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.
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) and subject to any limitations
set
by Norwegian law, 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;
8
(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.
b.
For
purposes of this Agreement, the term “Restricted
Period”
shall
mean a period commencing on [x] April 2007 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
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.
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4.8
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.
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:
|
Xxx
R Kjeldsberg
Suhms
Xxxx 00
0000
Xxxx, Xxxxxx
|
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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.
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.
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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: Ole Xxxxx Xxxxxx
Title: Chairman
by
/s/
Eirik
Ubøe
Name: Eirik Ubøe
Title: Chief Executive Officer
Xxx
X.
Kjeldsberg
/s/
Xxx X.
Kjeldsberg
12
