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EXHIBIT 10.8
CONFIDENTIALITY AND INDEMNITY AGREEMENT
THIS CONFIDENTIALITY AND INDEMNITY AGREEMENT (the "Agreement"), is dated
effective the 7th day of October 2008.
BETWEEN:
MAINLAND RESOURCES, INC., (THE "MAINLAND"), a Nevada Registered
Corporation with it business offices located at 17314 State Highway
249, Suite 306, Houston, Texas 77064
(herein also call the "CLIENT")
AND:
VIARD CONSULTING SERVICES, ("VCS"), a California Registered sole
proprietorship with it business offices located at 190 Cleaveland Rd
Suite # 3 in the city of Pleasant Hill California USA 94523
(herein also call the "CONSULTANTS")
AND:
ANGELO VIARD, ("VIARD"), is a Principal of the Indemnitor whose
address is 190 Cleaveland Rd Suite # 3 in the city of Pleasant Hill,
California USA 94523
(herein also call the "COVENANTOR")
RECITALS
Whereas:
A. The Client requires the services of a consultant with expertise in the
development of programs, systems and procedures for public companies.
B The Consulting Services required by the Client must include expertise
regarding the legislative, regulatory and procedural rules, requirements
and guidelines for compliance with the United States federal securities and
financial accountability legislation (herein called "Compliance
Requirements").
C. The Compliance Requirements primarily relate to the Sarbanes Oxley Act
of2002 ("SOX"), Corporate and Criminal Fraud Accountability Act of2002,
Securities Act of 1933, Securities and Exchange Act of 1934, and other
similar and related legislation (herein generally called the "SOX Related
Matters")
D. The Consultants possesses the requisite skill knowledge, expertise,
technical and personnel resources to provide a comprehensive package of
services and programs to the Client regarding the Compliance Requirements.
E. The Consultants will provide Consulting Services to Client the Client's
places of business and operations (herein referred to as "On-site
Services") including: personnel skills assessment and training, program
organization and systems analysis, computer hardware and software
consulting, knowledge updating and training to the Client's professional
staff and administrative personnel on all SOX Related Matters (collectively
called the "Consulting Services").
F. The Consulting Services is more extensively described in the contract for
Consulting Services (the "Viard Consulting Services Agreement") proposed to
be entered into by the Client, Consultant and the Covenantor, a draft copy
of which is attached hereto as Schedule "A".
G. The Client engaged the services of PMB Helin Donovan, Consultants and
Certified Public accountants (herein called "PMB"), under a prior
engagement agreement dated June 18, 2008 (the "PMB Engagement Agreement"),
and a copy is attached hereto as Schedule "B".
I. The services provided by PMB under the PMB Engagement Agreement were the
same or similar services as those Consulting Services provided by the
Consultants, and its personnel including the Covenantor (herein called the
Consultants and its Personnel"), under the Viard Consulting Services
Agreement.
J. The Client does not wish to pay twice for the duplication of services
already paid by it under the PMB Engagement Agreement nor does it wish to
pay any charges, penalties or make any other payments to PMB pursuant to
the PMB Engagement Agreement upon entering into the Viard Consulting
Agreement.
K. The Consultant and the Covenantor (in combination herein called the
"Indemnitors") desire that the Client enter into the Viard Consulting
Agreement.
L. To induce the Client into entering into the Viard Consulting Services
Agreement; the Indemnitors will jointly and severally indemnify and save
the Client (herein also called the "Indemnitee").
M. The Indemnitors intend to indemnify and save the Indemnitee harmless from
any loss, damage, charge, outlay, cost, expense, or any other payments,
which the Client incurs or may incur at any future time, arising out of the
PMB Engagement Agreement which is directly or indirectly related to or
associated with entering into the Viard Consulting Services Agreement.
NOW THEREFORE, in consideration of the premises and mutual obligations contained
herein and for other good and valuable consideration (the receipt, and
sufficiency of which is acknowledged by and between the Parties), the Parties
hereby agree as follows:
SPECIFIC PROVISIONS OF AGREEMENT
1. CONFIDENTIAL INFORMATION. For purposes of this Agreement, "Confidential
Information" will mean and include all proprietary information pertaining
to the Client's business, PMB Engagement Agreement, the Viard Consulting
Services Agreement and all proprietary undisclosed information in relation
to the Client itself. Confidential Information includes any information
stated in writing or designated "Confidential". Confidential Information
includes information disclosed by Client to the Indemnitees in writing (or,
if initially disclosed orally, thereafter confirmed as confidential in
writing). Confidential Information will not include information which:
(a) At the time of disclosure is in the public domain.
(b) After disclosure becomes a part of the public domain through no act or
omission by Indemnitees.
(c) Was in the possession of Indemnitees prior to disclosure by Client.
(d) Was independently developed by Indemnitees without reference to
Confidential Information.
2. CONFIDENTIALITY. The Indemnitors will keep, all Confidential Information
secret and confidential, and will ensure that the Confidential Information
is not photocopied, duplicated or reproduced in any manner whatsoever
(whether by hand, electronically or mechanically), except in strict
accordance with this Agreement, and will take all steps necessary to ensure
that:
(a) This Agreement is made known to its directors, officers, employees,
affiliates, representatives or agents whose duties and functions
require a knowledge of or access to the Confidential Information for
the purpose of providing the Consulting Services and that the
disclosure of the Confidential Information to those designated to
receive such Confidential Information is only on a need-to-know basis;
(b) Where such Confidential Information is required to be disclosed
pursuant to an order of any governmental or judicial authority, by the
Indemnitors or its affiliates, then the Indemnitors will provide 5
days' prior written notice to the Client of such disclosure; or,
(c) Any other such disclosure not in accordance with the provisions of
2(a) or (b) herein, will only be made with the express written consent
of the Client.
3. INDEMNITOR'S COVENANT The Indemnitors promises, covenants and agrees to be
liable to the Client and to indemnify and save the Client harmless from all
loss, costs, expenses (including Attorney fees and disbursements"), outlays
and damages suffered, incurred or sustained by the Client as a result of:
(a) Any breach of this Agreement by Indemnitors or by any of its
directors, officers, employees, affiliates, representatives or agents
(the combination thereof are referred to hereinafter referred to as
it's "Representatives").
(b) Any breach of this Agreement by Indemnitors or by any of its
Representatives due to the unauthorized disclosure of Confidential
Information contrary to this Agreement.
(c) Any loss, damage, charge, outlay, cost, expense, or any other
payments, which the Client incurs or may incur at any future time,
arising out of the PMB Engagement Agreement which is directly or
indirectly related to or associated with entering into the Viard
Consulting Services Agreement.
4. THIRD PARTIES "Third Parties" means any party, which is not a Party to this
Agreement or that Party's Representatives.
5. RETURN AND DESTRUCTION OF CONFIDENTIAL INFORMATION. Where the Agreement is
terminated for any reason within ten (10) business days of Termination the
Indemnitors promise, covenant and agree a to promptly return, all
Confidential Information then in the Indemnitors possession and permanently
delete any Confidential Information stored by them in a computer or
electronic retrieval system.
6. CONFIDENTIAL INFORMATION REMAINS PROPERTY OF THE CLIENT. The Indemnitors
acknowledge, confirm and agrees that the Confidential Information delivered
to it by Client will remain the exclusive property of the Client. Delivery
of Confidential Information to the Indemnitors will not give the
Indemnitors any right or interest to or in such Confidential Information
other than the sole right to use such Confidential Information in strict
accordance with the terms and conditions of this Agreement and in
connection with the Consulting Services.
7. TERMINATION AND SURVIVAL OF INDEMNITOR'S COVENANTS. This Agreement may be
terminated at any time by either Party by notice in writing. However, no
amendment to this Agreement, nor any addition or deletion hereof, will be
valid unless expressly made in writing and signed by duly authorized
signatory of the Parties. Provided further, that the Indemnitor's Covenants
will survive termination of this Agreement ("Termination"). The
Indemnitor's Covenant will survive Termination for a period two (2) years
from such Termination or the date that Party states in writing it no longer
intends to proceed with the Consulting Services.
8. COVENANTOR JOINTLY AND SEVERALLY LIABLE AS AN INDEMNITOR. The Covenantor
hereby confirms, acknowledges and agrees that:
(a) He has jointly and severally agreed to the Indemnitor's Covenants
together with the Consultant, after due and careful consideration as
the owner and principal of the Consultant.
(b) The Covenantor has been advised by the Client to seek and obtain
independent legal advice ("ILA") and independent legal representation
("ILR") prior to entering into and executing this Agreement, on the
grounds that the Client has its own ILA and ILR. Where the Covenantor
fails to seek and retain its own ILA and ILR, he does so for his own
reasons and in acceptance of the risks associated with his decision to
be an unrepresented Party.
GENERAL PROVISIONS OF AGREEMENT
9. NO IMPLIED OBLIGATIONS. Except as expressly stated and agreed to herein by
the Parties there are no other duties, obligations or undertakings by or
between the Parties hereto. The Parties are and will at all times remain
independent contractors of each other, and neither the execution nor
delivery of this Agreement, nor the disclosure and receipt of the
Confidential Information hereunder, in any way implies or creates any onus
or obligation on the part of either Party to proceed with the Proposed
Transaction or to enter into any business relationship or contract, or to
purchase any securities, property, product(s) or service(s), or to commit
in any way to the Proposed Transaction. Nothing in this Agreement will, nor
is intended to, constitute parties as principal-agent, partners, or
trustee-beneficiary of each other.
10. ENTIRE AGREEMENT. This Agreement constitutes the complete and exclusive
agreement between the Parties with respect to its subject matter,
superseding in its entirety any prior representations, inducements,
arrangements, obligations, promises, understandings or agreements between
the Parties regarding the subject matter hereof, whether written or oral,
that is not expressly contained in this Agreement.
11. AUTHORIZATION. Each Party represents to the other Party that:
(a) It is authorized to enter into and perform its duties, obligations and
commitments under this Agreement; and
(b) This Agreement is enforceable against each Party in accordance with
its terms, subject to bankruptcy, insolvency or similar laws affecting
Third Party rights generally and subject to the availability of
equitable remedies.
12. NOTICE. All notices required or contemplated by this Agreement will be in
writing and will be deemed received:
(a) When delivered in person or by courier on the date received by the
intended recipient;
(b) On the day sent by telecopier, facsimile transmission ("fax") or
electronic mail ("Email") (in any combination herein referred to as
"Electronically Transmitted"), if forwarded to the recipient on a
legal business day prior to 4:30 p.m. at the recipient's time (herein
referred to as the "Close-of-Business"). Where the Electronic
Transmission of such Notice is not made to the recipient prior to the
Close-of-Business, then the Notice is deemed by the Parties to be
received on the next following legal business day at the recipient's
address as provided herein
(c) Five (5) days after the date of mailing by pre-paid registered mail to
the intended recipient at their addresses as disclosed in this
Agreement or as otherwise provided by them in writing to the other
Party at any time during the currency of this Agreement.
(d) The addresses of the Parties hereto are as follows:
The Interested Party's Address and/or Contact Person (s) Information:
Viard Consulting Services, ("Consultant") and Angelo Viard, ("Viard")
both of:
Address:
To Attention of: Angelo Viard.
Tel: (925) 954-8286
Fax: (509)-769-5760
Email: angelofgH'iardcorp.com
The Mainland's Address and/or Contact Person (s) Information:
Mainland Resources, Inc.
Address:
To Attention of: Michael Newport
Tel: (281)469-5990
Fax: (281) 970-5723
Email: mnewport@meagheroil.com
Each Party may change the address to which Notices are sent hereunder, from time
to time, by giving the other Party notice of change in accordance with this
Section.
13. HEADINGS. The section headings contained in this Agreement have been
inserted for convenience of reference only and will not affect the
interpretation of any provision of this Agreement.
14. RECITALS. The recitals hereof form part of this Agreement and indicate the
general basis upon which the Parties entered into this Agreement.
15. ASSIGNMENT. This Agreement and the rights and obligations created by this
Agreement may not be assigned by either Party (except by operation of law
in the case of merger, consolidation or amalgamation) without the prior
written consent of the other Party in its absolute discretion.
16. COUNTERPARTS. This Agreement may be executed in any number of counterparts,
each of which will be an original, and such counterparts together will be
deemed to constitute one complete fully executed instrument legally
enforceable on its terms and conditions.
17. ENFORCEABILITY. This Agreement is deemed duly executed and enforceable from
the date of execution hereof by each of the Parties, or upon each of the
Parties executing a counterpart and a copy of each duly executed
counterpart being delivered to each of the Parties. Either Party may
request an originally executed copy of a counterpart for its records. The
request for an original copy of this Agreement or an executed counterpart
thereof, will not affect the enforceability of this Agreement, which takes
effective from and after execution and delivery as provided herein.
Execution may be effected by delivery through Electronic Transmission of
duly executed signature pages only (and the Parties may follow-up such
delivery by prompt delivery of the remaining pages of the counterpart to
each other by Electronic Transmission and/or the Originally Executed "hard
copy", as the Parties and circumstances require).
18. REMEDIES CUMULATIVE. The right and remedies of the Parties under this
Agreement are cumulative and are in addition to, and not in substitution
for, any other rights and remedies available at law, in equity or
otherwise. No single or partial exercise by a Party of any right or remedy
precludes or otherwise affects the exercise of any other right or remedy to
which that Party may be entitled.
19. GOVERNING LAW. This Agreement is governed by and will be construed in
accordance with the laws of the State of Nevada, United States of America,
which will have jurisdiction over the disputes or the interpretation of
this Agreement as between the Parties. The Parties hereto mutually agree to
attorn to the authority and jurisdiction of any court or tribunal of
competent jurisdiction, which is located in Nevada, to hear matters in
relation to this Agreement, unless the Parties mutually consent in writing
to a court or tribunal located within another jurisdiction as being duly
authorized to hear and preside over matters and proceedings between the
Parties hereto. Provided however, where a Party seeks to enforce any
equitable remedy and obtain an order for injunctive or such similar
equitable relief pursuant to this Agreement, the Party may bring an action
directly in the geographic location where the alleged breach or
contravention of this Agreement is occurring in order to expedite its
ability to obtain an immediate injunction of such breach or contravention,
as an alternative to brining the action or proceeding in Nevada and
attempting to extra-jurisdictionally enforce a Nevada Court Order for
injunctive relief elsewhere.
20. ELECTRONIC EXECUTION. Delivery of an executed signature page of this
Agreement by Electronic Transmission will be as effective as delivery of a
manually executed copy of this Agreement by a Party.
IN WITNESS WHEREOF the Parties or their authorized signatories have set their
hand and seal to these presents in the executed this Agreement intending it to
be binding upon them.
MAINLAND RESOURCES, INC. C/S
Per: /s/ MICHAEL NEWPORT
_______________________________
Authorized Signatory Michael Newport
_______________
Print Name Michael Newport
_________________________
Title President
VIARD CONSULTING SERVICES C/S
Per: /s/ ANGELO VIARD
_______________________________
Authorized Signatory Angelo Viard
_______________
Print Name Angelo Viard
_________________________
Title President
SIGNED, SEAL AND DELIVEDED by )
Angelo Viard, as Covenantor and )
Indemnitor, in the presence of: )
)
/s/ V. BARBON )
V. Barbon )
____________________________________ )
Print Witness )
)
____________________________________ )
Address )
)
Businessman ) /s/ ANGELO VIARD
____________________________________ ) _____________________________
Occupation Angelo Viar
