EXHIBIT 10.63
CONSULTING AND NON-COMPETE AGREEMENT
This Consulting and Non-Compete Agreement (this "Agreement'), dated as of
April 9, 1999, is made and entered into by and between Triton Exploration
Services, Inc., a Delaware corporation (the "Company"), and Xxxxx Xxxx (the
"Consultant").
The Consultant has resigned his position as a senior executive of the
Company and the Consultant and the Company have entered into a Severance
Agreement dated as of April 9, 1999 (the "Severance Agreement"). As an executive
of the Company, the Consultant acquired unique knowledge of the Company's
business and has occupied a position of trust and confidence. The Company and
the Consultant desire that, effective as of June 16, 1999 (the "Effective
Date"), the Consultant serve as a consultant to the Company and agree to refrain
from competing with the Company, all as set forth in this Agreement.
In consideration of the mutual agreements, the Consultant and the Company
agree as follows:
1. Consulting Services. For the Consulting Period (as defined in Section
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2), the Consultant shall provide from time to time and as requested by the
Company consulting services relating to such matters as the Company may
reasonably request, including services relating to analyses of potential
acquisitions, divestitures, financing alternatives and other similar matters
(the "Services"). The Consultant shall report to the Chief Operating Officer of
the Company. The Consultant shall devote such time and energy to the business of
the Company as reasonably required to perform the Services; provided that the
Consultant will not be obligated to commit more than 25% of his business time.
2. Term. The Consultant and the Company agree that the consulting period
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(the "Consulting Period ") shall begin on the Effective Date and end on the
six-month anniversary of the Effective Date.
3. Compensation. On April 19, 1999, the Company will pay to the Consultant
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an amount equal to $316,307.40.
4. Termination.
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(a) If the Company terminates the Consulting Period without Cause prior to
the six-month anniversary of the Effective Date, the compensation contemplated
by this Agreement shall remain unaffected.
(b) If (i) the Company terminates the Consulting Period at any time for
Cause, or (ii) the Consultant terminates the Consulting Period at any time, in
addition to any other remedies available at law or equity, any stock options
then held by the Consultant shall immediately terminate. "Cause" shall mean (i)
the Consultant's breach of any material term of this Agreement or the Severance
Agreement, including, but not limited to, the covenants set forth in Section 5
hereof, (ii) the Consultant's continued willful failure or refusal, after
written notice, to perform his duties hereunder and (iii) any willful misconduct
by the Consultant resulting in material injury to the Company.
(c) The death or disability of the Consultant during the Consulting Period
shall not relieve the Company of its obligations under Section 3.
5. Non-Competition; Confidentiality; Payments. In consideration for the
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compensation set forth herein, the Consultant agrees as follows:
(a) Until the six-month anniversary of the Effective Date, the Consultant
will not directly or indirectly, on Consultant's own behalf or in the service of
or on behalf of any other individual or entity, either as a proprietor,
employee, agent, independent contractor, consultant, director, officer, partner
or stockholder,
(i) engage or participate in any business in competition with the
business that Triton Energy Limited or any of its subsidiaries (including
50%-owned subsidiaries) (the "Triton Companies") operated as of the date
immediately preceding the Effective Date in any of the countries of Colombia,
Malaysia, Thailand, Equatorial Guinea, Madagascar, Greece or Italy; provided,
however, that this Section l(a) shall not prohibit the Consultant from
purchasing or holding an aggregate equity interest of up to 3% in any business
in competition with the Triton Companies, or
(ii) perform any action, activity or course of conduct which is
detrimental in any material respect to the businesses or business reputation of
the Triton Companies, including without limitation (A) soliciting, recruiting or
hiring any employees of the Triton Companies and (B) soliciting or encouraging
any employee of the Triton Companies to leave the employment of the Triton
Companies.
(b) The Consultant shall not, without the prior written consent of the
Company, disclose to any other person or use, whether directly or indirectly,
any Confidential Information (as defined in the Severance Agreement) relating to
or used by the Company or any of its affiliates, whether in written, oral or
other form, except in connection with the performance of his duties hereunder.
(c) In the event of a breach or threatened breach by the Consultant of the
provisions of this Section 5, the Consultant acknowledges that the Company will
suffer irreparable injury and may not have an adequate remedy at law and
therefore may be entitled to a temporary restraining order or a preliminary or
permanent injunction restraining the Consultant from such breach without the
requirement of posting security or proving actual damages as well as an
equitable accounting of all profits or benefits arising out of such violation.
Nothing contained in this Section 5 or elsewhere in this Agreement shall be
construed as prohibiting the Company from pursuing any other remedies available
at law or equity for such breach or threatened breach by the Consultant.
6. Conditions to Effectiveness. This Agreement shall become effective on
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the Effective Date, provided that the Consultant shall have taken no action to
revoke, rescind or otherwise challenge the Severance Agreement.
7. Duties on Termination. At the Company's request at any time or upon
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termination of the Consulting Period for any reason, the Consultant agrees to
deliver promptly to the Company all equipment, notebooks, documents, memoranda,
reports, files, samples, books, correspondence, lists, computer tapes or disks,
or other written or graphic records, and the like (and all copies thereof),
relating to the Company's business, which are or have been in his possession or
under his control.
8. Severability. In the event that any one or more of the provisions of
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this Agreement shall be or become invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
of this Agreement shall not be affected thereby.
9. Notices. All notices and other communications under this Agreement
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shall be in writing and may be given by hand delivery, by Federal Express, by
telecopier or registered or certified mail, postage prepaid, return receipt
requested, addressed as follows (or at such other address as may be substituted
by notice given as herein provided):
If to the Company:
Triton Exploration Services Inc.
0000 Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Legal Department
If to the Consultant:
0 Xxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Any notice or communication hereunder shall be deemed to have been given or made
as of the date so delivered if personally delivered or sent by Federal Express;
when receipt is acknowledged, if telecopied; and five calendar days after
mailing if sent by registered or certified mail.
10. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
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ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW.
11. Entire Agreement. Except as specifically set forth herein, this
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Agreement, together with the Severance Agreement, represents the entire
agreement between the parties hereto with respect to the subject matter hereof,
and supersedes all prior agreements, representations and understandings.
12. Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original, but all of which
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together shall constitute one and the same instrument.
13. Assignment. Neither the Consultant not the Company may assign any
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rights hereunder without the prior written consent of the other party, which
shall not be unreasonably withheld; provided that the Company may assign this
Agreement to any successor to the Company or a substantial part of the Company's
business or assets.
14. Amendments; Waivers. (a) This Agreement may not be modified, amended,
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altered or supplemented except upon the written agreement executed by the
parties hereto.
(b) No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
____________________________
Xxxxx Xxxx
TRITON EXPLORATION SERVICES, INC.
By: __________________________
Its: __________________________
