EMPLOYMENT AGREEMENT
THIS
EMPLOYMENT AGREEMENT (“Agreement”),
is
effective as of July 1, 2007 (the “Effective
Date”),
by and
between Samson Oil and Gas USA, Inc., a Colorado corporation (“Company”),
and
Xxxxx Xxxxxx (“Employee”).
Recitals
Company
desires
to retain the personal services of Employee as Vice President-Finance and Chief
Financial Officer of Company and of Company’s parent, Samson Oil and Gas Limited
(“Parent”) and Employee
is
willing to continue to make her services available to Company and
Parent,
on the
terms and conditions hereinafter set forth;
Agreement
NOW,
THEREFORE, in consideration of the premises and mutual covenants set forth
herein, the parties agree as follows:
1. Employment.
1.1 Employment
and Term.
Company
hereby agrees to employ Employee and Employee hereby agrees to serve Company,
on
the terms and conditions set forth herein, for the period commencing on the
Effective Date and continuing through May 31, 2009, unless sooner terminated
in
accordance with the terms and conditions hereof (the “Term”).
The
Term will be extended for a second two (2) year period ending May 31, 2011
unless either party gives written notice on or before March 1, 2009 of the
party’s decision not to so extend.
1.2 Duties
of Employee.
Employee shall serve as the Vice President-Finance and Chief Financial Officer
of Company and Parent, and shall have and exercise general responsibility for
the accounting and financial management of Company and Parent. Employee shall
report to the Chief Executive Officer and Managing Director of Company and
Parent and to the Board of Directors of Parent (the “Board”),.
Employee shall also have such other powers and duties as the Board may from
time
to time delegate to her provided that such duties are consistent with her
position. Employee shall devote substantially all her working time and attention
to the business and affairs of Company and Parent (excluding any vacation and
sick leave to which Employee is entitled), render such services to the best
of
her ability, and use her best efforts to promote the interests of Company and
Parent. So long as such activities do not interfere with the performance of
Employee’s responsibilities as an employee of Company in accordance with this
Agreement, it shall not be a violation of this Agreement for Employee to (i)
serve on corporate, civic or charitable boards or committees, (ii) deliver
lectures or fulfill speaking engagements; (iii) manage personal investments;
or
(iv) participate in continuing education seminars or similar activities relevant
to her duties and responsibilities for the Company.
1.3 Place
of Performance.
In
connection with her employment by Company, Employee shall be based at Company’s
offices in Colorado or another mutually agreed location, except for travel
necessary in connection with Company’s business.
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2. Compensation.
2.1 Base
Salary.
Employee shall receive a base salary in an amount set by the Board from time
to
time throughout the Term (the “Base
Salary”)
during
the Term, payable in installments consistent with Company’s normal payroll
schedule, subject to applicable withholding and other taxes. As of the Effective
Date, Employee’s Base Salary is $130,000. Employee’s Base Salary may be
increased, but shall not be decreased without Employee’s written
consent.
2.2 Incentive
Compensation.
Employee shall be entitled to receive such bonus payments or incentive
compensation as may be determined at any time or from time to time by the Board
in its discretion.
2.3 Relocation
Expenses.
(a) If
(i)
Employee resigns for Good Reason under Section 4.6, or (ii) this Agreement
is
terminated by Company for any reason other than a termination for Cause under
Section 4.1, or (iii) Company declines to extend the Term for a second two
(2)
year period under Section 1.1, then Company shall pay all reasonable relocation
expenses incurred by Employee in returning to Australia.
(b) If
Company’s offices to which Employee is assigned are relocated outside of the
Denver, Colorado metropolitan area and Employee remains employed by Company
pursuant to this Agreement, then Company shall pay all reasonable relocation
expenses incurred by Employee in relocating to Company’s new location.
3. Expense
Reimbursement and Other Benefits.
3.1 Expense
Reimbursement.
During
the Term, Company shall reimburse Employee for all documented reasonable
expenses actually paid or incurred by Employee in the course of and pursuant
to
the business of Company, subject to and in accordance with the expense
reimbursement policies and procedures in effect for Company’s employees from
time to time.
3.2 Other
Benefits.
During
the Term, Company shall make available to Employee such benefits and perquisites
as are generally provided by Company to its senior management (subject to
eligibility), including but not limited to vacation and sick leave, U.S.
immigration and visa support, participation in any group life, medical, health,
dental, disability or accident insurance, pension plan, 401(k) savings and
investment plan, profit-sharing plan, employee stock purchase plan, incentive
compensation plan or other such benefit plan or policy, if any, which may
presently be in effect or which may hereafter be adopted by Company for the
benefit of its senior management or its employees generally, in each case
subject to and on a basis consistent with the terms, conditions and overall
administration of such plan or arrangement.
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3.3 Automobile.
Employee shall be entitled to be reimbursed for her expenses of owning and
operating an automobile or other motor vehicle chosen by Employee, subject
to
the reasonable approval of Company’s CEO, including lease payments, insurance,
maintenance and fuel expenses, subject to Company’s general policies with
respect to reimbursement of such amounts.
4. Termination.
4.1 Termination
for Cause.
Notwithstanding anything contained to the contrary in this Agreement, this
Agreement and Employee’s employment hereunder may be terminated by Company for
Cause. As used in this Agreement, “Cause”
shall
mean (i) subject to the following sentences, any action or omission of
Employee which constitutes (A) a breach of any of the provisions of Section
6 of
this Agreement, (B) a breach by Employee of her fiduciary duties and obligations
to Company, or (C) Employee’s failure or refusal to follow any lawful directive
of the Board, in each case which act or omission is not cured (if capable of
being cured) within ten (10) days after written notice of same from Company
to
Employee, or (ii) conduct constituting fraud, embezzlement, misappropriation
or
gross dishonesty by Employee in connection with the performance of her duties
under this Agreement, or a conviction of Employee of, a felony (other than
a
traffic violation) or, if it shall damage or bring into disrepute the business,
reputation or goodwill of Company or impair Employee's ability to perform her
duties with Company, any crime involving moral turpitude. Employee shall be
given a written notice of termination for Cause specifying the details thereof.
Upon any termination pursuant to this Section 4.1, Employee shall only be
entitled to her Base Salary as then in effect through the date of termination,
reimbursement of expenses incurred prior to the date of termination in
accordance with Section 3.1 hereof and, and any other compensation and benefits
payable in accordance with Section 3.2 hereof. Upon making such payments,
Company shall have no further liability to Employee hereunder.
4.2 Disability.
Notwithstanding anything contained in this Agreement to the contrary, Company,
by written notice to Employee, shall at all times have the right to terminate
this Agreement and Employee’s employment hereunder if Employee shall, as the
result of mental or physical incapacity, illness or disability, fail or be
unable to perform her duties and responsibilities provided for herein in all
material respects for a period of more than sixty (60) consecutive days in
any
12-month period. Upon any termination pursuant to this Section 4.2, (i) within
thirty (30) days after the date of termination, Company shall pay Employee
any
unpaid amounts of her Base Salary accrued prior to the date of termination
and
shall reimburse Employee for all expenses described in Section 3.1 of this
Agreement and incurred prior to the date of termination, and (ii) in lieu of
any
further Base Salary, incentive compensation or other benefits or payments to
Employee for periods subsequent to the date of termination Company shall pay
to
Employee the Severance Payments and Severance Benefits specified in Section
5.1.
Upon making such payments and providing such benefits, Company shall have no
further liability hereunder; provided,
however, that
Employee shall be entitled to receive any amounts then payable pursuant to
any
employee benefit plan, life insurance policy or other plan, program or policy
then maintained or provided by Company to Employee in accordance with Section
3.2 hereof and under the terms thereof.
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4.3 Death.
In the
event of the death of Employee during the term of her employment hereunder,
this
Agreement shall terminate on the date of Employee’s death. Upon any such
termination, (i) within thirty (30) days after the date of termination, Company
shall pay to the estate of Employee any unpaid amounts of her Base Salary
accrued prior to the date of termination and reimbursement for all expenses
described in Section 3.1 of this Agreement and incurred by Employee prior to
her
death, and (ii) in lieu of any further Base Salary, incentive compensation
or
other benefits or payments to the estate of Employee for periods subsequent
to
the date of termination Company shall pay to the estate of Employee the
Severance Payments specified in Section 5.1. Upon making such payments, Company
shall have no further liability hereunder; provided,
that
Employee’s spouse, beneficiaries or estate, as the case may be, shall be
entitled to receive any amounts then payable pursuant to any employee benefit
plan, life insurance policy or other plan, program or policy then maintained
or
provided by Company to Employee in accordance with Section 3.2 hereof and under
the terms thereof. Nothing herein is intended to give Employee’s spouse,
beneficiaries or estate any rights to or interest in any key man life insurance
policy on Employee maintained by Company for the benefit of Company.
4.4 Termination
Without Cause.
At any
time Company shall have the right to terminate this Agreement and Employee’s
employment hereunder by written notice to Employee. Upon any termination
pursuant to this Section 4.4,, Company shall
pay
Employee any unpaid amounts of her Base Salary accrued prior to the date
of
termination
and
shall reimburse Employee for all expenses described in Section 3.1 of this
Agreement and incurred prior to the date of termination,
provided,
however, that if Company provided Employee with less than ninety (90) days
prior
written notice of the date of such termination, then in addition to her Base
Salary and benefits through the date of such termination, Company shall also
pay
Employee, on the date of such termination, an amount equal to her Base Salary
for the difference between the required ninety (90) days notice and the actual
notice given by Company, subject to all appropriate withholdings and deductions.
If
there
has been a Change in Control of Company at any time during the Term, however,
then Employee shall be entitled to receive prior notice of the effective
date of
termination equal to the greater of six (6) months or the time remaining
until
the end of the Term at the time of such notice (the “Change
in Control Notice Period”).
If
there
has been a Change in Control and Company provides Employee with a notice
of
termination that is less than the Change in Control Notice Period, then Company
shall nevertheless pay Employee, on the date of such termination, her Base
Salary, subject to all appropriate withholdings and deductions, for the
difference between the Change in Control Notice Period and the actual notice
given by Company. Upon
making such payments and providing such benefits, Company
shall have no further liability hereunder other
than relocation expenses under Section 2.3 hereunder and any amounts then
payable pursuant to any employee benefit plan, life insurance policy or other
plan, program or policy then maintained or provided by Company to Employee
in
accordance with Section 3.2 and under the terms thereof. For
purposes of this Agreement, a Change in Control of Company shall be deemed
to
have occurred if (i) any person, entity or group becomes the beneficial owner,
directly or indirectly, of 50% or more of the voting securities of Company
or
Company’s parent, Samson Oil and Gas Limited, a Western Australia corporation
(“Parent”);
or
(ii) as a result of, or in connection with, any tender offer, exchange offer,
merger, business combination, sale of assets or contested election of directors
(a "Transaction"),
the
persons who were directors of Company or Parent immediately before the
Transaction no longer constitute a majority of the directors of Company;
or
(iii) Company is merged or consolidated with another corporation or entity
and,
as a result of the merger or consolidation, less than 51% of the outstanding
voting securities of the surviving corporation or entity is then owned in
the
aggregate by the former stockholders of the Company; or (iv) Company transfers
all or substantially all or substantially all of its assets to another
corporation which is not a wholly owned subsidiary of the Company.
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4.5 Voluntary
Resignation.
Employee may, upon not less than ninety (90) days prior written notice to
Company, resign and terminate her employment hereunder. In the event Employee
resigns as an employee of Company, she shall be entitled to receive only such
payment(s) as she would have received had she been terminated pursuant to
Section 4.1 hereof. Employee
shall not under any circumstances give Company less than ninety (90) days prior
written notice of her resignation date.
4.6 Resignation
for Good Reason.
Employee
may, by written notice to Company during the Term, elect to terminate her
employment on the basis of “good reason” if there is (a) a material change of
the principal location in which Executive is required to perform her duties
hereunder without Executive’s prior consent (it being agreed that any location
within the state of Colorado or the Perth, Western Australia metropolitan area
shall not be deemed a material change); or (b) a material reduction in (or
a
failure to pay or provide a material portion of) Employee’s Base Salary or other
benefits payable under this Agreement or (c) a Change in Control of Company.
Any
such notice of termination by Executive for “good reason” shall specify the
circumstances constituting “good reason” and shall afford Company an opportunity
to cure such circumstances at any time within the thirty (30) day period
following the date of such notice. If Company does cure such circumstances
within said thirty (30) day period, the notice of termination shall be withdrawn
by Executive and of no further force and effect. If the circumstances cited
in
Executive’s notice qualify as “good reason” hereunder and are not cured within
the thirty (30) days after the notice, this Agreement shall be terminated ninety
(90) days after Executive’s original written notice and such termination shall
be treated in all respects as if it had been a termination without cause not
involving a Change in Control under Section 4.4 of this Agreement.
5. Restrictive
Covenants.
5.1 Nondisclosure.
(a) Employee
acknowledges
that as part of the terms of her employment by Company, she will have access
to
and/or may develop
or assemble confidential information owned by or related to Company, its
customers or its business partners or Parent. Such confidential information
(whether or not reduced to writing) shall include without limitation, plans
designs, data, processes, know-how, research and development projects, manuals,
techniques, software and hardware, customer lists and information, contracts,
marketing strategies and literature, agency relationships and terms, financial
information, pricing and compensation structures, business relations and
negotiations, employee lists, vendors and suppliers, and any other information
designated as “confidential” by Company or Parent (collectively, “Confidential
Information”).
Employee shall retain all Confidential Information in confidence in perpetuity,
and shall not use or disclose Confidential Information for any purpose other
than to the extent necessary to perform her/her duties as an employee of
Company. This duty of confidentiality shall continue indefinitely
notwithstanding any termination of Employee’s employment.
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(b) Employee
agrees to (i) return to Company upon request, and in any event, at the time
of
termination of employment for whatever reason, all documents, equipment, notes,
records, computer disks and tapes and other tangible items in her possession
or
under her control which belong to Company or any of its affiliates or which
contain or refer to any Confidential Information relating to Company or any
of
its affiliates and (ii) if so requested by Company, delete all Confidential
Information relating to Company or any of its affiliates from any computer
disks, tapes or other re-usable material in her possession or under her control
which contain or refer to any Confidential Information relating to Company
or
any of its affiliates.
5.2 Non-solicitation
of Customers and Employees.
During
the Term and the Severance Period, Employee (a) shall not solicit the business
of any person, company or firm which is a former, current, or prospective
customer or business partner of Company or Parent (a “Customer”) for the benefit
of anyone other than the Company or Parent if the business solicited is of
a
type offered by Company or Parent during the Term, (b) shall not solicit or
encourage any Customer to modify, diminish or eliminate its business
relationship with Company or Parent or take any other action with respect to
a
Customer which could be detrimental to the interests of Company or Parent,
and
(c) shall not solicit for employment or for any other comparable service, such
as consulting services, and shall not hire or engage as a consultant any
employee or independent contractor employed or engaged by Company or Parent
at
any time during the Term. Employee acknowledges that violation of this covenant
constitutes a misappropriation of Company’s or Parent’s trade secrets in
violation of her duty of confidentiality owed to Company.
5.3 Non-competition.
(a)
During the Term and the Severance Period, unless otherwise waived in writing
by
Company (such waiver to be in Company’s sole and absolute discretion), Employee
shall not, directly or indirectly, engage in, operate, manage, have any
investment or interest or otherwise participate in any manner (whether as
employee, officer, director, partner, agent, security holder, creditor,
consultant or otherwise) in any sole proprietorship, partnership, corporation
or
business or any other person or entity (each, a “Competitor”)
that engages directly or indirectly, in a Competing Business; provided,
that Employee may hold or acquire, solely as an investment, shares of capital
stock or other equity securities of any Competitor, so long as the securities
are publicly traded and Employee does not control, acquire a controlling
interest in, or become a member of a group which exercises direct or indirect
control of, more than five percent (5%) of any class of equity securities of
such Competitor. For purposes of this Agreement, the term “Competing
Business”
means any business
that is engaged in competition with Company, or that is developing or offering
products or services which are similar to or competitive with any products
or
services of Company, including but not limited to internet based commercial
data
management products and services.
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5.4 Non-disparagement.
During the Term and the Severance Period, Employee
will not distribute, cause a distribution of, or make any oral or written
statement, which directly or by implication tarnishes, creates a negative
impression of, or puts Company, its reputation and goodwill in a bad light,
or
disparages Company or Parent in any other way, including but not limited to:
(a)
the working conditions or employment practices of Company or Parent; (b)
Company’s oil and gas properties, including unproved or proved undeveloped
properties;
or (c)
Company’s
directors, officers and personnel. It will not be a violation of this section
for
Employee to make truthful statements, under oath, as required by law or formal
legal process.
5.5 Intellectual
Property Rights.
Employee
understands that as part of her Employment she may alone or together with others
create, compile, or discover computer software, designs, literature, ideas,
trade secrets, know-how, commercial information, or any other valuable invention
or copyrightable work (collectively, “Intellectual
Property”).
Employee acknowledges that Company shall own all right, title, and interest
in
all Intellectual Property created by her in whole or in part in the course
of
her employment by Company. Employee hereby assigns to Company all right, title,
and interest in the copyrights or patents embodied in or represented by such
Intellectual Property, including all rights of renewal and termination, and
to
any and all other intellectual property rights, including without limitation,
trademarks, trade secrets, and know-how embodied in Intellectual Property or
in
any other idea or invention developed in whole or in part by Employee in the
course of her Employment. Employee further agrees to take all actions and to
execute all documents necessary in order to perfect and to vest such
intellectual property rights in Company.
5.6 Injunction.
It is
recognized and hereby acknowledged by the parties hereto that a breach by
Employee of any of the covenants contained in Section 6 of this Agreement will
cause irreparable harm and damage to Company, the monetary amount of which
may
be virtually impossible to ascertain. As a result, Employee recognizes and
hereby acknowledges that Company shall be entitled to an injunction from any
court of competent jurisdiction enjoining and restraining any violation of
any
or all of the covenants contained in Section 6 of this Agreement by Employee
or
any of her affiliates, associates, partners or agents, either directly or
indirectly, and that such right to injunction shall be cumulative and in
addition to whatever other remedies Company may possess.
6. Entire
Agreement; No Conflicts With Existing Arrangements.
No
agreements or representations, oral or otherwise, express or implied, with
respect to the subject matter hereof have been made by either party which are
not set forth expressly in this Agreement and this Agreement contains the entire
agreement, and supersedes any other agreement or understanding, between Company
and Employee relating to Employee’s employment and any compensation or benefits
in respect thereof. Employee represents and warrants to Company that she has
reviewed any existing employment or non-competition covenants with her prior
employer, and that her employment by Company hereunder does not and will not
conflict with or constitute a breach or default under any of the terms or
provisions thereof.
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7. Notices:
All
notices and other communications required or permitted under this Agreement
shall be in writing and will be either hand delivered in person, sent by
facsimile, sent by certified or registered first class mail, postage pre-paid,
or sent by nationally recognized express courier service. Such notices and
other
communications will be effective upon receipt if hand delivered or sent by
facsimile, five (5) days after mailing if sent by mail, and one (l) day after
dispatch if sent by express courier, to the following addresses, or such other
addresses as any party may notify the other parties in accordance with this
Section:
If
to
Company:
Xxxxx
000
0000
Xxxx Xxxx
Xxxxxxxx
XX 00000
Attention:
Xxxxxxxx Xxxx
Facsimile:
(000) 000-0000
If
to
Employee:
Xxxxx
Xxxxxx
0000
Xxxxxxx Xxxxx, Xxx 0000
Xxxxxx,
XX 00000
Facsimile:
(000) 000 0000
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9.
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Successors
and Assigns.
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(a) This
Agreement is personal to Employee and without the prior written consent of
Company shall not be assignable by Employee otherwise than by will or the laws
of descent and distribution. This Agreement shall inure to the benefit of and
be
enforceable by Employee’s legal representatives.
(b) This
Agreement shall inure to the benefit of and be binding upon Company and its
successors and assigns.
(c) Company
will require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or
assets of Company to expressly assume and agree to perform this Agreement in
the
same manner and to the same extent that Company would be required to perform
it
if no such succession had taken place. As used in this Agreement, “Company”
shall
mean Company and any successor to its business and/or assets which assumes
and
agrees to perform this Agreement by operation of law or otherwise.
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10.
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Severability.
The invalidity of any portion of this Agreement shall not affect
the
enforceability of the remaining portions of this Agreement. If
any
provision of this Agreement shall be declared invalid, this Agreement
shall be construed as if such invalid word or words, phrase or
phrases,
sentence or sentences, clause or clauses, or section or sections
had not
been inserted. If such invalidity is caused by length of time or
size of
area, or both, the otherwise invalid provision will be considered
to be
reduced to a period or area which would cure such
invalidity.
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11.
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Waivers.
The waiver by either party hereto of a breach or violation of any
term or
provision of this Agreement shall not operate nor be construed
as a waiver
of any subsequent breach or
violation.
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13.
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No
Third Party Beneficiary.
Nothing expressed or implied in this Agreement is intended, or
shall be
construed, to confer upon or give any person (other than the parties
hereto and, in the case of Employee, her heirs, personal representative(s)
and/or legal representative) any rights or remedies under or by
reason of
this Agreement.
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14.
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Governing
Law.
This Agreement shall be governed by and construed in accordance
with the
laws of the State of Colorado, without regard to principles of
conflict of
laws.
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15.
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Survival.
Employee’s obligations under Section 6 hereof shall not terminate upon the
termination of employment or the termination of this Agreement
but shall
continue in accordance with their terms set forth herein.
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15.
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Counterparts
and Facsimile Signatures.
This Agreement may be executed in one or more counterparts and
by the
separate parties hereto in separate counterparts, each of which
shall be
deemed an original, but all of which together shall constitute
one and the
same document. Telecopies or other electronic facsimiles of original
signatures shall be deemed to be the same as original signatures
for all
purposes.
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IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the
Effective Date.
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COMPANY:
SAMSON OIL AND GAS USA, INC.
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| By: | /s/ Xxxxx Bar | |
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Xxxxx Xxxx, |
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| CEO & Managing Director | ||
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EMPLOYEE:
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| By: | /s/ Xxxxx Xxxxxx | |
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Xxxxx Xxxxxx |
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