CONSULTING AGREEMENT
Exhibit 10.1
This CONSULTING AGREEMENT (the “Agreement”) is entered into as of April 1, 2011 by Synthesis
Energy Systems, Inc., a Delaware corporation (the “Company”), with a place of business at Xxxxx
Xxxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000, and Xxxxxx X. Xxxxxxx (the “Consultant”), of 317 Fuxing
Xx Xx, Xxxxxxxx 000000, Xxxxx.
The Company desires to retain the services of Consultant and Consultant desires to perform
certain services for the Company. In consideration of the mutual covenants and promises contained
in this Agreement and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereby agree as follows:
1. Nature of Services. Consultant will generally advise and consult with the Company on
such matters as specifically requested by the Company’s Chief Executive Officer and agreed to by
the Consultant (the “Services”). The Company is under no obligation to request Services from
Consultant and Consultant is under no obligation to accept requests for Services from the Company.
2. Term and Termination. The Company hereby engages and retains Consultant as a consultant,
and Consultant hereby accepts the engagement, beginning on the date of this Agreement and
continuing until February 28, 2012 (the “Consulting Period”). The Company or Consultant may
terminate this Agreement at any time upon thirty (30) days written notice to the other.
3. Compensation.
(a) Fees and Expenses. As compensation for the Services provided by Consultant on behalf of
the Company during the Consulting Period or until this Agreement is terminated in accordance with
Section 2, the Company will pay Consultant a fee of $4,500 per month (the “Consulting Fee”). In
all cases, Consultant shall provide the Company an invoice at the end of each month during the
Consulting Period. The invoice shall reflect a description of the Services provided during that
month, plus any reasonable and customary out-of-pocket expenses incurred in accordance with the
Company’s travel and expense guidelines for third parties. Each invoice shall be payable within
thirty (30) days of receipt by the Company.
(b) Independent Contractor Relationship. Consultant is an independent contractor and is not an
officer, employee, servant, agent, partner or joint venturer of the Company. The Company shall
determine the Services to be provided by Consultant but Consultant shall determine the legal means
by which such Services are accomplished. While the relationship between the Company and Consultant
is not an employer/employee relationship, Consultant will nonetheless devote such amount of his
time, knowledge and skills to the business of the Company as may be required or necessary to
complete the Services. In the performance of the Services, Consultant shall not be, and shall not
hold himself out to be, an officer, employee, servant, agent, partner or joint venturer of the
Company and shall have no authority to legally bind the Company unless expressly authorized to do
so in writing by an authorized executive officer of the Company. Consultant warrants that the
Services to be provided hereunder will not cause a conflict with any other duties or obligations of
Consultant to third parties. Consultant shall not subcontract or assign any of the Services to be
performed hereunder without obtaining the prior written consent of the Company. The Company and
Consultant acknowledge and agree that the relationship governed by this Agreement, and the
provision of Services hereunder, shall have no effect on the rights, restrictions and obligations
of Consultant in his capacity as a member of the board of directors of the Company.
(c) Taxes and Benefits. Consultant shall be responsible for and agrees to pay when due, all
taxes, including but not limited to income tax, self-employment tax, Social Security and
withholding taxes on any fees Consultant receives for the Services. As a result of this Agreement
and providing Services hereunder, Consultant shall not be entitled to receive any benefits from the
Company, including but not limited to: overtime compensation, worker’s compensation, unemployment
compensation, medical insurance, life insurance, paid vacations, paid holidays, pension, profit
sharing or Social Security.
4. Cooperation. Consultant shall use his best efforts, in a professional and workmanlike
manner and in accordance with industry standards, in the performance of his obligations under this
Agreement. The Company shall provide such access to its information and property as may be
reasonably required in order to permit Consultant to perform his obligations hereunder. Consultant
shall cooperate with the Company’s personnel, shall not interfere with the conduct of the Company’s
business and shall observe all rules, regulations and security requirements of the Company
concerning the safety of person and property and security of information.
5. Inventions.
(a) All inventions, discoveries, computer programs, data, technology, designs, innovations and
improvements, whether or not patentable and whether or not copyrightable (together, “Inventions”)
related to the business of the Company which are made, conceived, reduced to practice, created,
written, designed or developed by Consultant, solely or jointly with others and whether during
normal business hours or otherwise, during the Consulting Period or thereafter, if resulting or
directly derived from Proprietary Information (as defined below), shall constitute “works made for
hire” for the Company within the meaning of the Copyright Act of 1976, as amended, and shall be the
sole and exclusive property of the Company. Consultant hereby assigns to the Company all Inventions
and any and all related patents, copyrights, trademarks, trade names, trade secrets and other
industrial and intellectual property rights and applications therefore, in the United States and
elsewhere and appoints any officer of the Company as Consultant’s duly authorized attorney to
execute, file, prosecute and protect the same before any government agency, court or authority.
Upon the request of the Company and at the Company’s expense, Consultant shall execute any
instruments and do all things reasonably necessary or desirable to fully and completely perfect the
Company’s rights with respect to any Invention.
(b) Consultant shall promptly disclose to the Company all Inventions and will maintain
adequate and current written records of all Inventions, in the form of notes, sketches, drawings
and as may be specified by the Company.
(c) Consultant warrants that Consultant has the right to make the assignments made by
Consultant hereunder, and further warrants that none of the Inventions will infringe or
misappropriate any patent, copyright, trademark, trade secret or other proprietary right of any
third party. If notified of a claim that an Invention infringes any patent, copyright, trademark,
trade secret or other proprietary right of any third party, Consultant shall indemnify and hold
harmless the Company and its officers, directors and employees against all costs, damages, losses
and expenses (including reasonable attorneys’ fees) arising from such claim. Consultant shall also
cooperate reasonably at Company’s expense with the Company in the defense, settlement or compromise
of any such claim.
6. Proprietary Information.
(a) “Proprietary Information” information, which is used in the business of the Company
and (i) is proprietary to, about or created by the Company, (ii) gives the Company some
competitive business advantage or the opportunity of obtaining such advantage or the disclosure of
which could be detrimental to the interests of the Company, (iii) is designated as Confidential
Information by the Company, is known by Consultant to be considered confidential by the Company, or
from all the relevant circumstances should reasonably be assumed by Consultant to be confidential
and proprietary to the Company, or (iv) relates to the U-GAS coal gasification technology and its
use in the manufacture of synthesis gas and other energy products (and any work product resulting
from or related thereto), any Invention, formula, vendor information, customer or client
information, trade secret, process, methodology, research, report, technical data, know how,
computer program, software, software documentation, design, technology, marketing or business plan,
forecast, unpublished financial statements or budgets, or license, price, cost or employee list
that is communicated to, learned of, developed or otherwise acquired by Consultant in the course of
his service as a consultant to the Company. Failure to xxxx any writing as proprietary or
confidential shall not affect the proprietary or confidential nature of such writing or the
information contained therein.
(b) Consultant acknowledges that his relationship with the Company is one of high trust and
confidence and that in the course of his service to the Company he will have access to and contact
with Proprietary Information. Consultant agrees that he will not, during the Consulting Period or
at any time thereafter, disclose to others, or use for Consultant’s benefit or the benefit of
others, any Proprietary Information or Invention. Notwithstanding the foregoing, Consultant’s
obligations under this Section 6 shall not apply to any information that (i) is or becomes known to
the general public under circumstances involving no breach by Consultant or others of the terms of
this Section 6, (ii) is generally disclosed to third parties by the Company without restriction on
such third parties, or (iii) is approved for release by written authorization of the President and
Chief Executive Officer of the Company.
(c) Upon the termination of this Agreement for any reason, Consultant shall deliver to the
Company all Proprietary Information and other business records which Consultant may have in
Consultant’s possession concerning or affecting the business of the Company and/or the Services
performed under this Agreement.
7. Company Policies. Consultant further agrees to execute and comply at all times during
the Consulting Period with all applicable policies, rules and regulations of the Company,
including, without limitation, the Company’s FCPA Policy and its Code of Business and Ethical
Conduct, as each is in effect from time to time during the Consulting Period.
8. Subsidiary and Affiliate. The “Company” as used in this Agreement, shall include any
entity which owns or controls, is owned or controlled by, or is under common control or ownership
with, the Company.
9. Notices. All notices required or permitted under this Agreement shall be in writing and
shall be deemed effective upon personal delivery, upon deposit in the United States Post Office, by
registered or certified mail, postage prepaid, or upon delivery by nationally-recognized overnight
courier, addressed to the other party at the address shown above (and if to the Company, marked to
the attention of the President and Chief Executive Officer), or at such other address or addresses
as either party shall designate to the other in accordance with this section.
10. Remedies. Consultant agrees that it would be difficult to measure and calculate the
Company’s damages from any breach of the covenants set forth in this Agreement and that any such
breach would cause irreparable harm to the Company. Accordingly, at the sole discretion of the
Company, Consultant
agrees that in the event of any such breach, the Company will have, in addition to any other right
or remedy available, the right to seek an injunction from a court of competent jurisdiction
restraining such breach or threatened breach and to specific performance of any such provision of
this Agreement. The prevailing party in such a proceeding shall have the right to recover from the
other the costs and expenses thereof, including reasonable attorney’s fees.
11. Entire Agreement; Amendments; Interpretation. This Agreement constitutes the entire
agreement between the parties and supersedes all prior agreements and understandings between the
parties, whether written or oral, relating to the subject matter of this Agreement. The parties
specifically acknowledge and agree that the employment agreement between Consultant and the Company
dated July 14, 2006, as amended on August 13, 2009 and October 15, 2010, has been terminated and is
of no further force and effect. This Agreement may be amended or modified only by a written
instrument executed by both the Company and Consultant. This Agreement shall be construed,
interpreted and enforced in accordance with the laws of the State of Texas, without regard to its
provisions governing choice of law.
12. Survival. The following sections of this Agreement shall survive the termination
of this Agreement: Section 5 — Inventions, Section 6 — Proprietary Information and Section 10 —
Remedies.
13. Assignment. The Company may not assign any or all of its rights and duties under this
Agreement at any time without Consultant’s prior written consent, which will not be unreasonably
withheld. Consultant may not assign Consultant’s rights or duties under this Agreement without the
prior written consent of the Company, which may be withheld in the Company’s sole discretion.
Otherwise, this Agreement shall be binding upon, and inure to the benefit of, both parties and
their respective successors and assigns.
14. Severability. If a provision of this Agreement or its application to any party or
circumstance, is held invalid or unenforceable in any jurisdiction, to the extent permitted by law,
such provision or the application of such provision to any party or circumstances other than those
as to which it is held invalid or unenforceable and in other jurisdictions, and the remaining
provisions of this Agreement, shall not be affected.
15. Counterparts. This Agreement may be executed and delivered (including by facsimile or
Portable Document Format (pdf) transmission) in any number of counterparts with the same effect as
if all parties hereto had signed the same document. Facsimile and other electronic copies of
manually-signed originals shall have the same effect as manually-signed originals and shall be
binding on all parties hereto. All counterparts must be construed together to constitute one and
the same instrument.
16. Miscellaneous. The captions used in this Agreement are for convenience of reference
only and in no way define, limit or affect the scope or substance of any section hereof.
[Signature page follows]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first written above.
| COMPANY SYNTHESIS ENERGY SYSTEMS, INC. |
||||
| /s/ Xxxxxx Xxxxxx | ||||
| Xxxxxx Xxxxxx | ||||
| President and Chief Executive Officer | ||||
| CONSULTANT Xxxxxx X. Xxxxxxx |
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| /s/ Xxxxxx X. Xxxxxxx | ||||
