Contract
Exhibit 10.4
J. Xxxxxx Xxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Dear Xxx:
I am pleased to confirm our mutual agreement (“Agreement”) regarding your retention as a
consultant to Magellan Petroleum Corporation, a Delaware corporation and its wholly-owned
subsidiaries (collectively, the “Company”) to provide consulting services to the Company on the
following terms:
1. Term. This Agreement shall commence on July 8, 2009 (the “Effective Date”) and run
for a period of three years, ending on July 8, 2012, unless earlier terminated by the parties under
Section 9 hereof (the “Term”). This Agreement may be renewed or extended for any period as may be
agreed by the parties.
2. Consulting Services; Other Consulting Services or Employment.
(a) The Company hereby retains you to render consulting services to the Company on the terms
and subject to the conditions of this Agreement. During the Term, you shall perform your duties
efficiently and to the best of your ability and at such locations as may be reasonably necessary or
appropriate to fulfill your duties and responsibilities hereunder.
(b) You shall not be required to follow any formal schedule of duties or assignments and will
be responsible for managing your own time.
(c) Subject to the restrictions of Sections 5 and 6 hereof, it is understood that you will
engage in other business activities and employment during the Term (including the performance of
consulting services for third parties concurrently with your performance of the duties hereunder),
provided such activities and/or employment do not unreasonably conflict with the performance of
your duties to the Company hereunder.
(d) You represent and warrant to the Company that you are under no contractual or other
restrictions or obligations which are inconsistent with the execution of this Agreement, or which
will interfere with the performance of your duties hereunder. You also represent and warrant
that your execution and performance of this Agreement will not violate any policies or
procedures of any
other person or entity for which you performs services concurrently with those
performed for the Company hereunder.
3. Duties and Responsibilities.
(a) During the Term, you will provide your management and geologic expertise and experience in
support of the principal activities of the Company and its senior management. You shall make
yourself available on an “as needed” non-substantial periodic basis, with consideration given to
reasonable advance notice to you to the extent practicable of the times such services are needed
and given to your other activities and responsibilities. You shall perform such duties and have
such responsibilities as may be mutually agreed from time-to-time. In addition, you agree to
provide a brief written report of your consulting services whenever I shall request such a report.
(b) Subject to the foregoing, you shall also be available to support “special projects” of the
Company and to devote substantial amounts of time to such special projects. The Company will
determine with you on a mutually agreed basis what assignments shall be considered to involve
“special projects” for purposes of this Agreement.
(c) Upon your election to the Board of Directors, you shall perform the duties required of a
director of the Company, for which you shall receive compensation to the same extent as other
non-employee members of the Board.
4. Compensation; Expenses.
(a) Other than reimbursement of your reasonable out-of-pocket expenses in rendering such
services, you shall not receive cash compensation for your non-substantial periodic services. In
the event that the Company requests that you perform substantial services devoted to special
projects, you shall receive cash compensation of one thousand dollars ($1,000) per day (to be
pro-rated for work performed for less than a day), which amounts shall be aggregated on a monthly
basis and payable within fifteen (15) days after the end of each successive month following the
Effective Date of this Agreement.
(b) On February 2, 2009, you were granted two non-qualified stock options (the “Stock
Options”) under the Company’s 1998 Stock Incentive Plan, which Stock Options entitle you to
purchase an aggregate of three hundred and eighty-seven thousand five hundred (387,500) shares of
Common Stock of the Company. The Stock Options are evidenced by two non-qualified stock option
award agreements entered into as of the date hereof.
(c) The Company shall reimburse you for your normal and customary out-of-pocket expenses (such
as lodging, meals, travel and transportation costs to and from the Company’s offices including its
offices in Brisbane, Australia or other Australian locations) in connection with your provision of
services under this Agreement, provided that any such expenses which in the aggregate would exceed
$1,000 shall require the Company’s prior approval. The Company shall promptly reimburse you for
your lodging expenses, but shall have the option of providing mutually acceptable Company-leased
lodging to you at Company’s sole costs and expense. All
reimbursements shall be made by the Company promptly, but not later than twenty (20) days
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after the
Company has received from you an acceptable expense report and request for reimbursement.
(d) In your performance of services hereunder, you shall keep such records as the Company may
reasonably require. Compensation for services under Section 4(a) above shall be gross payments, and
the Company shall provide you with related information for tax purposes annually within the time
provided by law for any calendar year coming within the term of this Agreement.
(e) You shall be responsible for all income, sales or other taxes of any nature whatsoever
pertaining to your compensation under this Agreement. The Company shall not have any liability
whatsoever for withholding, collection or payment of income taxes or for taxes of any other nature
on your behalf.
5. Confidentiality.
(a) In your position as a consultant to the Company, you acknowledge that you will be exposed
to confidential or proprietary information and trade secrets (“Proprietary Information”) pertaining
to, or arising from, the business of the Company, that such Proprietary Information is unique and
valuable to the business of the Company and that the Company would suffer irreparable injury if
this information were divulged to those in competition with the Company. Therefore, you agree to
keep in strict secrecy and confidence, both during and after the Term, any and all Proprietary
Information which you acquire, or to which you have access, during the Term, that has not been
publicly disclosed by the Company or that is not a matter of common knowledge by the Company’s
competitors, except as required by law.
(b) Except with prior written approval of the Company, you will neither, directly or
indirectly, disclose any Proprietary Information to any person except authorized personnel of the
Company nor use Proprietary Information in any way other than in the course of your duties under
this Agreement. Upon termination of this Agreement, you will, upon the Company’s request, promptly
return to the Company all documents, records or other memorializations including copies of
documents and any notices which you have prepared, that contain Proprietary Information or relate
to the Company’s business, that are in your possession or under your control.
6. Non-Competition; Non-Solicitation. You hereby agree that, during the Term of this
Agreement and for a period of one (1) calendar year after the termination of your service to the
Company hereunder, for any reason whatsoever, you shall not, and shall not permit any entity or
business enterprise of which you are an executive, agent, officer, promoter, director, shareholder,
partner, trustee or consultant to, directly or indirectly:
(a) engage in, enter into or participate in any business or commercial activity within the
geographic areas in which the business of the Company is conducted which does or is reasonably
likely to compete with or adversely affect any of the oil and gas exploration and development
businesses of the Company as conducted in such geographic areas during the Term of this Agreement,
it being understood that the discrete geographic areas shall be identified by the energy resource
basins involved, not the country or political subdivision, and shall cover only
those areas where the Company or its subsidiaries (i) own or otherwise hold oil, gas or other
mineral resources or assets; (ii) are otherwise actively engaged in the business of extracting and
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selling oil, gas or other mineral resources or assets, or (iii) have definitive plans for (i) or
(ii) within the twelve (12) months following the date of your termination of service to the
Company.
(b) solicit or accept business from, or otherwise interfere with the business relationships
(whether formed heretofore or hereafter) between the Company and, any of its customers or
suppliers, which actions could directly or indirectly divert business from or adversely affect the
business of the Company; or
(c) solicit (or attempt to solicit) or encourage to leave the employment of the Company or
employ in any capacity or retain as a consultant any person who was employed or retained in any
capacity, including without limitation as a consultant, by the Company during the term of the
Consultant’s employment with the Company.
7. Right to Injunctive Relief. You acknowledge that in the event of a breach of this
Agreement, the Company will be irreparably and immediately harmed and could not be made whole by
monetary damages alone, and that in addition to any other remedy to which the Company might be
entitled, the Company shall be entitled to injunctive relief to prevent breaches of this Agreement.
To the extent permissible by law, you hereby waive any requirement that the Company post a bond in
order to secure an injunction. No failure or delay by the Company to enforce its rights under this
Agreement shall be deemed a waiver of any of those rights.
8. Independent Contractor; Code of Conduct. In the performance of your consulting
services under this Agreement, you shall at all times be acting and performing as an independent
contractor and not as an employee of the Company. It is specifically understood that the Company
shall not, with respect to the consulting services to be rendered by you, exercise such control
over you as is contrary to its relationship with you as an independent contractor. During the Term
hereof, you shall adhere to the requirements of the Company’s Standards of Conduct (as of August
2004).
9. Termination.
(a) The Company may terminate this Agreement immediately upon notice to you upon the
occurrence of any of the following:
(i) your commission of any deliberate and premeditated act involving moral turpitude,
regardless of whether such crime is related to your duties under this Agreement;
(ii) your conviction, or the entry of a plea of nolo contendere by you, of a felony;
(iii) your continued failure or refusal to perform consulting services hereunder when and as
reasonably requested by the Company which is not cured within ten (10) business days after written
notice from the Company to you describing the failure, or your gross negligence in connection with
the performance of such services;
(iv) your breach of any provision of this Agreement, which is not cured within ten (10)
business days after written notice from the Company to you describing the breach; or
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(v) upon your death or disability.
(b) For purposes of Section 9(a)(v) hereof, the term “disability” shall mean your incapacity
that prevents you from performing your duties hereunder with or without reasonable accommodation
for a period in excess of two hundred forty (240) days (whether or not consecutive), or one hundred
eighty (180) days consecutively, as the case may be, during any twelve (12) month period.
(c) Upon mutual agreement of the parties, you may terminate this Agreement due to disability
or other illness which make it impossible for you to continue.
(d) Upon termination of this Agreement, the parties shall be relieved of any further
obligations hereunder except for the obligations set forth in Sections 5 and 6 hereof and any
then-outstanding payment obligations of the Company for services rendered by you prior to
termination of this Agreement.
10. Securities Laws. You hereby acknowledge that you are aware of the restrictions
imposed by U.S. and Australian securities laws on the purchase or sale of securities by any person
who has received material, non-public information from the issuer of such securities and on the
communication of such information to any other person when it is reasonably foreseeable that such
other person is likely to purchase or sell such securities in reliance upon such information. You
hereby confirm that you will take any action reasonably necessary to prevent the use of any
information about the Company in any way that might violate any applicable securities laws or
regulations.
11. Governing Law. The validity and interpretation of this Agreement shall be
governed by the law of the State of Delaware applicable to agreements made and to be fully
performed therein without regard to the conflicts of law principles of such state.
12. Assignability. The rights and obligations of the Company under this Agreement
shall inure to the benefit of and be binding upon its successors and assigns. Except as otherwise
provided herein, your rights and obligations hereunder may not be assigned or alienated and any
attempt to do so by you will be void.
13. Notices. All notices and other communications hereunder shall be in writing and
shall be given by hand delivery to the other party or by registered or certified mail return
receipt requested, postage prepaid, addressed as follows:
If to the Consultant
J. Xxxxxx Xxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
If to the Company:
Magellan Petroleum Corporation
0 Xxxxxxxx Xxxx
0 Xxxxxxxx Xxxx
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Xxxxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, President and CEO
Attention: Xxxxxxx X. Xxxxxxxx, President and CEO
or to such other address as either party shall have furnished to the other in writing in
accordance herewith. Notice and communications shall be effective when actually received by the
addressee.
14. Miscellaneous. For the convenience of the parties, any number of counterparts of
this Agreement may be executed by the parties hereto. Each such counterpart shall be, and shall be
deemed to be, an original instrument, but all such counterparts taken together shall constitute one
and the same Agreement. You represent that you are free to enter into this Agreement that you have
not made and will not make any agreement in conflict with this Agreement. This Agreement may not
be modified or amended except in writing signed by the parties hereto. This Agreement states the
entire understanding of the parties with respect to its subject matter and may be amended only by a
writing signed by both parties. Any waiver of any of the rights of a party may only be made in a
writing signed by the party waiving its rights.
* * * * * *
If the foregoing correctly sets forth our agreement, I would appreciate your signing the
enclosed copy of this letter in the space provide and returning it to me.
| Very truly yours, | ||||||
| MAGELLAN PETROLEUM CORPORATION | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxxxx
Title: President and CEO |
|||||
Confirmed and agreed to
this 9th day of July 2009
this 9th day of July 2009
/s/ J. Xxxxxx Xxxxxx
|
cc:
|
Xxxxxx XxXxxx | |
| Xxxxxx X. Xxxxxxxxxx |
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