EMPLOYMENT AGREEMENT
Exhibit 10.9
This EMPLOYMENT AGREEMENT (the “Agreement”) is entered into on the 30th day
of May, 2006 (the “Effective Date”) by and between Synthesis Energy Systems, Inc., a
Delaware corporation (the “Corporation”), and Xxxxx X. Xxxxxxxxx, an individual residing at
00 Xxxxxxxxx Xxxx, Xxx Xxxxxxxxx, Xxxxxxxxxxx 00000 (the “Executive”) under the following
terms and conditions:
RECITALS:
WHEREAS, the Corporation desires to employ the Executive in the capacity hereinafter stated,
and the Executive desires to enter into the employ of the Corporation in such capacity for the
period and on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth below, it is
hereby covenanted and agreed by the Corporation and the Executive as follows:
1. Employment Period. The Corporation hereby agrees to employ the Executive as its
Chief Financial Officer, and the Executive, in such capacities, agrees to provide services to the
Corporation for the period beginning on or before the date the Corporation closes its approximately
$15-30 million private placement of its common stock with Union Charter Financial, Ltd. acting as
the placement agent (the “Commencement Date”) and ending on the fourth anniversary of the
Commencement Date (the “Employment Period”).
2. Position/Duties.
(a) The Executive agrees that during the Employment Period, while he is employed by the
Corporation, he shall, except as otherwise expressly provided herein, devote his full-time energies
and talents exclusively to serving in the capacities of Chief Financial Officer of the Corporation
in the best interests of the Corporation. As Chief Financial Officer of the Corporation, the
Executive shall perform the duties and functions that are normal and customary to such position,
including, without limitation, the usual duties of a Chief Financial Officer and those duties
assigned to him from time to time by the Corporation’s Chief Executive Officer or the Board of
Directors of the Corporation (the “Board”). The Executive will report and be responsible
to the Chief Executive Officer. In such capacity, the Executive will be responsible the following
tasks which shall not be conclusive: (i) supervise the finance and accounting department personnel,
including the Corporation’s Controller, (ii) manage and supervise the Corporation’s financial
reporting and compliance requirements, (iii) manage or assist the Chief Executive Officer in all
matters relating to presenting company information and be a contact person for contacts with and
presentations to investment bankers, Wall Street analysts and other functions relating to
disclosure of information as is required of a publicly-traded company, (iv) assist in connection
with due diligence related to mergers and acquisitions, strategic alliances and major contracts,
and (v) assist the Chief Executive Officer as is necessary.
(b) In addition to the duties assigned to the Executive by the Board, the Executive’s duties
shall also include the following:
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| • | Supporting the next round of the Corporation’s capital-raising efforts, including: |
| o | Drafting, reviewing and editing the private placement offering documents; | ||
| o | Preparing PowerPoint presentations for various investors; | ||
| o | Preparing financial projections; | ||
| o | Meeting with potential and existing investors as requested; and | ||
| o | Participating in discussions regarding various alternative financing approaches. |
| • | Originating and negotiating strategic relationships to support the development of the Corporation’s initiative in the United States, including: determining the types of strategic partners, including coal companies, petrochemical firms (e.g. Dow Chemical), industrial gas firms (e.g. Air Liquide), and power generation equipment providers (e.g., General Electric) that will allow the Corporation to achieve its objective of developing a single gasifier plant in the United States which demonstrates the Corporation’s ability to convert low quality coal into a saleable commodity (e.g. power, steam). | ||
| • | Evaluate tax strategies and manage the Corporation’s relationship with Price Waterhouse Coopers, as appropriate. | ||
| • | Assist in the negotiation of extending the Corporation’s license with the Gas Technology Institute. |
(c) Further, the Executive shall not, without prior written consent from the Board (which
consent shall not be unreasonably withheld):
(i) serve as or be a consultant to or employee, officer, agent or director of any
corporation, partnership or other entity other than (A) the Corporation, or (B) civic,
charitable, or other public service organizations; or
(ii) have more than a five percent (5%) ownership interest in any enterprise other than
the Corporation if such ownership interest would have a material adverse effect upon the
ability of the Executive to perform his duties hereunder; provided, however,
the Executive shall (X) disclose to the Board any 5% ownership interest in any enterprise,
(Y) disclose any financial relationship or ownership (regardless of such percentage), with
any supplier, customer or partner of the Corporation or any of its subsidiaries, and (Z) not
cause a conflict of interest between the Corporation or any of its subsidiaries on the one
hand and any supplier, customer or partner of the Corporation or any of its subsidiaries on
the other hand.
(d) To the extent such position exists, during the Employment Period, the Executive shall be
entitled to serve on any advisory board that is created by the Corporation.
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(e) As a condition to the Executive performing his duties hereunder, the Corporation shall
hire a Controller with an appropriate financial, accounting and compliance background who shall
report directly to the Executive.
3. Compensation. Subject to the terms and conditions of this Agreement, during the
Employment Period, while he is employed by the Corporation, the Executive shall be compensated by
the Corporation for his services as follows:
(a) Beginning on the Commencement Date, the Executive shall be entitled to an initial base
salary of $10,000 per month (the “Base Salary”), payable at the end of each month during
the Employment Period (except that the salary to be paid during the first and last month of the
Employment Period shall be on a pro rata basis determined by a fraction the numerator of which is
the number of business days the Executive worked during such month and the denominator of which is
the number of business days in such month) and subject to normal tax withholding.
(b) Upon the closing of the Corporation’s next round of equity financing, the Executive’s Base
Salary shall increase to $15,000 per month, payable as provided in paragraph (a), above. In
addition, upon such closing, the Corporation shall pay the Executive a one-time bonus equal to the
product of: $5,000 multiplied by the number of months between the Commencement Date and the date
of the closing of such equity financing.
(c) During the Employment Period, the amount of the Executive’s Base Salary shall be reviewed
by the Compensation Committee of the Board, which shall be established by the Board and consist of
at least two (2) non-employee directors (the “Compensation Committee”), on or before each
anniversary of the Commencement Date to determine whether an increase in the Executive’s Base
Salary is appropriate.
(d) For each fiscal year of the Corporation (the “Bonus Period”), and in addition to
receiving the Base Salary, the Executive shall be entitled to a performance bonus (the
“Bonus”) if, and only if, the Executive has met the performance criteria set by the
Compensation Committee for such Bonus Period. Notwithstanding the foregoing, the first Bonus
Period shall include the remainder of the calendar year 2006 through the end of the Corporation’s
fiscal year that expires in the calendar year 2007. The Bonus for the Executive shall, at a
minimum, be at least fifty percent (50%) of the Executive’s yearly Base Salary for meeting
established criteria, but otherwise shall be at the discretion of the Compensation Committee, and
such Bonus amount shall be reset by the Compensation Committee each fiscal year thereafter
(provided, however, that the minimum Bonus for the remainder of the calendar year 2006 shall be 50%
of the Base Salary actually received by the Executive during the calendar year 2006). The
Corporation agrees that all performance targets will be set at levels that are reasonably
achievable in light of business conditions that exist at the time such targets are set. The
Executive acknowledges that the performance criteria and the target Bonus to be earned for each
Bonus Period shall be set as soon as reasonably practicable for such Bonus Period (but in no event
later than 30 days before the commencement of the Bonus Period in question), and the Executive
shall have the opportunity to meet with and discuss such criteria with the Compensation Committee
prior to the finalization of such criteria. Upon completion of the criteria for the applicable
Bonus Period, such criteria shall be communicated to the Executive in
writing. If the Executive successfully meets the performance criteria established by the
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Compensation Committee, the Corporation shall pay the Executive the earned Bonus amount within
thirty (30) days after the end of such applicable Bonus Period. Each Bonus, if any, shall be
earned on the last day of the Bonus Period to which it relates.
(e) The Executive shall be a participant in certain executive benefit plans adopted by the
Corporation if and when such plans are adopted, on substantially the same terms and conditions as
other senior executives of the Corporation.
(f) The Executive shall be entitled to receive the following perquisites:
(i) Reimbursement of no more than $1,500 per month for all reasonable and customary
medical and health insurance premiums incurred by the Executive (including dental, vision,
accidental death and dismemberment, disability and life insurance (such life insurance
policy not to exceed $1 million in value)) from the date hereof until the Corporation is
able to provide comparable insurance policies for the Executive. The Corporation has the
right, but not the obligation, to purchase, replace or assume responsibility for any such
insurance policies; provided, however, that under any and all circumstances
the Executive shall receive at least the same benefits as contained in any of the policies
purchased, replaced or assumed by the Corporation and prior to taking any such action, the
Corporation shall consult with the Executive to ensure that the Executive remains covered by
and receives at least the same benefits under such policies during the period after which
the Corporation exercises its rights under this paragraph 3(g)(i) and consummates the
purchase, replacement or assumption of such policies. Prior to making any reimbursements
pursuant to this paragraph 3(g)(i), the Corporation may request appropriate documentation as
evidence of such premium payments.
(ii) Reimbursement up to $100,000 of any relocation expenses, including brokerage fees
on the purchase and sale of homes, if the Executive elects to relocate to the greater
Houston, Texas metropolitan area.
(iii) The Executive shall be entitled to an annual paid vacation equal to the greater
of (i) the Corporation’s policy applicable to senior executives, or (ii) four weeks per year
(as prorated for partial years), which vacation may be taken at such times as the Executive
elects with due regard to the needs of the Corporation.
(g) The Executive shall be entitled to participate in the Corporation’s 2006 Stock Option Plan
(the “Plan”) pursuant to the terms and conditions set forth therein and the discretion of
the Board. In connection with the Plan, the Executive shall be granted options to purchase up to
1,900,000 shares of the Corporation’s capital stock at an exercise price equal to $4.00 per share,
which options shall vest as follows: 380,000 shares shall vest as of the Effective Date, and the
remainder of such options shall vest on the following four (4) annual anniversary dates of the
Effective Date in equal installments of 380,000 shares. Such options shall also be subject to such
other requirements set forth in a Stock Option Agreement to be entered into by and between the
Corporation and the Executive.
(h) To the extent it is determined that the stock options granted to the Executive hereunder
are subject to Section 409A of the Internal Revenue Code of 1986, as
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amended (the “Code”), then the
Executive shall be entitled to receive additional payments from the Corporation in amounts
necessary to cover the taxes (including any interest or penalties imposed with respect to such
taxes) imposed upon the Executive as a result of (i) Section 409A of the Code covering the grant of
options hereunder, and (ii) receiving such additional payments to cover the taxes imposed under
Section 409A of the Code.
(i) The Executive shall be reimbursed by the Corporation for all reasonable business,
promotional, travel and entertainment expenses incurred or paid by the Executive during the
Employment Period in the performance of his services under this Agreement: (i) provided that such
expenses constitute business deductions from taxable income for the Corporation and are excludable
from taxable income to the Executive under the governing laws and regulations of the Internal
Revenue Code; (ii) to the extent that such expenses do not exceed the amounts allocable for such
expenses in budgets that are approved from time to time by the Corporation and are not in violation
of the Corporation’s expense reimbursement policies; and (iii) provided that the Executive provides
the Corporation with the corresponding expense reports in a timely manner consistent with the
Corporation’s policies. Notwithstanding the foregoing, in the event of extraordinary or unusual
expenses, the Executive shall first obtain the Chief Executive Officer’s prior written approval
prior to incurring such expenses. In order that the Corporation reimburse the Executive for such
allowable expenses, the Executive shall furnish to the Corporation, in a timely fashion, the
appropriate documentation required by the Internal Revenue Code in connection with such expenses
and shall furnish such other documentation and accounting as the Corporation may from time to time
reasonably request.
4. Restrictive Covenants. The Executive acknowledges and agrees that: (i) the
Executive has a major responsibility for the operation, development and growth of the Corporation’s
business; (ii) the Executive’s work for the Corporation has brought him and will continue to bring
him into close contact with confidential information of the Corporation and its customers; and
(iii) the agreements and covenants contained in this paragraph 4 are essential to protect the
business interests of the Corporation and that the Corporation will not enter into the Agreement
but for such agreements and covenants. Accordingly, the Executive covenants and agrees to the
following:
(a) Confidential Information. Except as may be required by the lawful order of a
court or agency of competent jurisdiction, the Executive agrees to keep secret and confidential,
both during the Employment Period and for five (5) years after the Executive’s employment with the
Corporation terminates, all non-public information concerning the Corporation and its affiliates
that was acquired by, or disclosed to, the Executive during the course of his employment by the
Corporation or any of its affiliates, including information relating to customers (including,
without limitation, credit history, repayment history, financial information and financial
statements), costs, and operations, financial data and plans, whether past, current or planned and
not to disclose the same, either directly or indirectly, to any other person, firm or business
entity, or to use it in any way; provided, however, that the provisions of this
paragraph 4(a) shall not apply to information that: (a) was, is now, or becomes generally available
to the public (but not as a result of a breach of any duty of confidentiality by which the
Executive is bound); (b) was disclosed to the Executive by a third party not subject to any duty
of confidentiality to the Corporation prior to its disclosure to the Executive; or (c) is
disclosed by the Executive in the ordinary course of the Corporation’s business as a proper part of
his
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employment in connection with communications with customers, vendors and other proper parties,
provided that it is for a proper purpose solely for the benefit of the Corporation. The Executive
further agrees that he shall not make any statement or disclosure that (i) would be prohibited by
applicable Federal or state laws, or (ii) is intended or reasonably likely to be detrimental to the
Corporation or any of its subsidiaries or affiliates
(b) Non-Competition. The Executive agrees that for the period commencing on the
Commencement Date and ending on the eighteen (18) month anniversary if the Executive is terminated
for cause or voluntarily resigns (the “Non-Competition Period”), the Executive shall not
directly or indirectly, alone or as a partner, officer, director, employee, consultant, agent,
independent contractor, member or stockholder of any person or entity (“Person”), engage in
any business activity in the People’s Republic of China, the Republic of India, the United States
of America or any other country in which the Corporation or any of its subsidiaries is then doing
business, which is directly or indirectly in competition with the Business of the Corporation or
which is directly or indirectly detrimental to the Business or business plans of the Corporation or
its affiliates; provided, however, that the record or beneficial ownership by the
Executive of five percent (5%) or less of the outstanding publicly traded capital stock of any
company for investment purposes shall not be deemed to be in violation of this paragraph 4(b) so
long as the Executive is not an officer, director, employee or consultant of such Person. The
“Business” of the Corporation shall mean the actual or intended business of the Corporation
during the Employment Period and as of the date the Executive leaves the employment of the
Corporation, including, but not limited to, poly-generation and syngas production. As of the date
hereof, the Business of the Corporation is to provide distributed power, utility services and coal
gasification plant development, operations and maintenance based on coal gasification technology.
The restrictions set forth in this paragraph 4(b) are not applicable to large scale public
utilities that may have gasification operations, provided that these utilities do not utilize U-Gas
or other low-Btu coal gasification technologies or the downstream products derived from these
technologies. The Executive further agrees that during the Non-Competition Period, he shall not in
any capacity, either separately or in association with others: (i) employ or solicit for employment
or endeavor in any way to entice away from employment with the Corporation or its affiliates any
employee of the Corporation or its affiliates; (ii) solicit, induce or influence any supplier,
customer, agent, consultant or other person or entity that has a business relationship with the
Corporation to discontinue, reduce or modify such relationship with the Corporation; nor (iii)
solicit any of the Corporation’s identified potential acquisition candidates.
(c) Remedies. If the Executive breaches, or threatens to commit a breach of any of
the provisions contained in paragraphs 4(a) or 4(b) (the “Restrictive Covenants”), the
Executive acknowledges and agrees that the Corporation shall have no adequate remedy at law and
shall therefore be entitled to enforce each such provision by temporary or permanent injunction or
mandatory relief obtained in any court of competent jurisdiction without the necessity of proving
damages, posting any bond or other security, and without prejudice to any other rights and remedies
that may be available at law or in equity.
(d) Severability. If any of the Restrictive Covenants, or any part thereof, are held
to be invalid or unenforceable, the same shall not affect the remainder of the covenant or
covenants, which shall be given full effect, without regard to the invalid or unenforceable
portions. Without limiting the generality of the foregoing, if any of the Restrictive Covenants,
or
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any part thereof, are held to be unenforceable because of the duration of such provision or the
area covered thereby, the parties hereto agree that the court making such determination shall have
the power to reduce the duration and/or area of such provision and, in its reduced form, such
provision shall then be enforceable.
(e) Proprietary Rights. The Executive acknowledges and agrees that all know-how,
documents, reports, plans, proposals, marketing and sales plans, client lists, client files, and
any materials made by the Executive or by the Corporation are the property of the Corporation and
shall not be used by the Executive in any way adverse to the Corporation’s interests. The
Executive shall not deliver, reproduce or in any way allow such documents or things to be delivered
or used by any third party without specific direction or consent of the Board. The Executive
hereby assigns to the Corporation any rights which he may have in any such trade secret or
proprietary information.
5. Termination and Compensation Due Upon Termination. Except as otherwise provided
under the executive benefit plans maintained by the Corporation in which the Executive participates
in accordance with paragraph 3(f), the Executive’s right to compensation for periods after the date
the Executive’s employment with the Corporation terminates shall be determined in accordance with
the following:
(a) Termination Without Cause. The Executive may only be terminated without cause by
a majority vote of the Board; provided that the Executive shall be entitled to be heard by the
Board with respect to such termination prior to the Board’s vote. In the event the Corporation
terminates the Executive’s employment under this Agreement without cause, the Corporation shall pay
the Executive any compensation and benefits the Corporation owes to the Executive through the
effective date of termination. Additionally, and conditioned upon the Executive’s voluntary
execution of a written release (to be drafted and provided by the Corporation) of any and all
claims, including without limitation any claims for lost wages or benefits, stock options,
compensatory damages, punitive damages, attorneys’ fees, equitable relief, or any other form of
damages or relief the Executive may assert against the Corporation, the Executive shall be entitled
to receive:
(i) all payment of his Base Salary (as of the date of termination date) in accordance
with the provisions of paragraph 3(a) for the the remainder of the Employment Period;
provided, however, that any such payments shall not be for less than six (6)
months;
(ii) payment of any Bonus that otherwise would have been payable to the Executive under
paragraph 3(e) through the effective date of termination; and
(iii) any issued but unvested stock options described in paragraph 3(h) shall
automatically vest as of the date of such termination.
In the event the Board elects to terminate the Executive in connection with the Corporation
materially and continuously (i.e., for a period of at least 6 consecutive quarters) failing to meet
the financial targets reasonably established by the Board, then such termination shall be deemed a
termination without cause and the Executive shall be entitled to receive all of the payments and
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benefits described in this paragraph 5(a) except that any unvested stock options described in
paragraph 3(g) shall be deemed terminated and of no further force of effect.
(b) Voluntary Resignation. The Executive may terminate his employment with the
Corporation for any reason (or no reason at all) at any time by giving the Corporation sixty (60)
days prior written notice of voluntary resignation; provided, however, that the
Corporation may decide that the Executive’s voluntary resignation be effective immediately upon
notice of such resignation. The Corporation shall have no obligation to make payments to the
Executive in accordance with the provisions of paragraph 3 for periods after the date on which the
Executive’s employment with the Corporation terminates due to the Executive’s voluntary
resignation. However, for purposes of this paragraph 5, the Executive’s termination of employment
with the Corporation shall not be construed as a voluntary resignation and shall be construed as
“good reason” if the Executive resigns following the occurrence of one of the following events:
(i) the relocation of the Executive’s office outside of the greater Houston, Texas
metropolitan area; or
(ii) a material breach of any of the provisions of this Agreement.
If the Executive terminates his employment with the Corporation for “good reason”, then the
Executive shall be entitled to receive:
(x) all payment of his Base Salary (as of the date of termination date) in accordance
with the provisions of paragraph 3(a) for the remainder of the Employment Period;
provided, however, that any such payments shall not be for less than six (6)
months;
(y) payment of any Bonus that otherwise would have been payable to the Executive under
paragraph 3(e) through the effective date of termination; and
(z) any issued but unvested stock options described in paragraph 3(h) shall
automatically vest as of the date of such termination.
(c) Termination for Cause. The Executive may only be terminated for cause by a
majority vote of the Board; provided that the Executive shall be entitled to be heard by the Board
with respect to such termination prior to the Board’s vote. The Corporation shall have no
obligation to make payments to the Executive in accordance with the provisions of paragraph 3 or
otherwise for periods after the Executive’s employment with the Corporation is terminated on
account of the Executive’s discharge for cause. For purposes of this Agreement, the Executive
shall be considered terminated for “cause” if he is discharged by the Corporation on
account of the occurrence of one or more of the following events:
(i) the Executive becomes habitually addicted to drugs or alcohol;
(ii) the Executive discloses confidential information in violation of paragraph 4(a)
and such disclosure has a material adverse effect on the Corporation, or engages in
competition in violation of paragraph 4(b);
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(iii) the Corporation is directed by regulatory or governmental authorities to
terminate the employment of the Executive or the Executive engages in activities that cause
actions to be taken by regulatory or governmental authorities that have a material adverse
effect on the Corporation;
(iv) the Executive is indicted of a felony crime (other than a felony resulting from a
minor traffic violation);
(v) the Executive flagrantly disregards his duties under this Agreement after (A)
written notice has been given to the Executive by the Board that it views the Executive to
be flagrantly disregarding his duties under this Agreement and (B) the Executive has been
given a period of ten (10) days after such notice to cure such misconduct;
(vi) any event of egregious misconduct involving serious moral turpitude to the extent
that, in the reasonable judgment of the Board, the Executive’s credibility and reputation no
longer conform to the standard of the Corporation’s executives; or
(vii) the Executive commits an act of fraud against the Corporation.
(d) Disability. The Corporation shall have no obligation to make payments to the
Executive in accordance with the provisions of paragraph 3 for periods after the date the
Executive’s employment with the Corporation terminates on account of disability, except payments
due and owing through the effective date of termination. The Executive, however, shall be entitled
to retain all shares of stock that have vested as of such date. For purposes of this paragraph
5(d), determination of whether the Executive is disabled shall be determined in accordance with the
Corporation’s long term disability plan (if any) and applicable law.
(e) Death. The Corporation shall have no obligation to make payments to the Executive
in accordance with the provisions of paragraph 3 for periods after the date of the Executive’s
death, except payments due and owing as of such date. The Executive’s estate, however, shall be
entitled to retain all shares of stock that have vested as of such date.
(f) Stock Options. In the event of the termination of this Agreement (regardless of
reason), and notwithstanding anything to the contrary contained herein, the Executive must exercise
all vested stock options issued to the Executive pursuant to this Agreement within six (6) months
after the effective termination date of this Agreement.
6. Change in Control; Gross-Up Payments.
(a) A “Change in Control” shall be deemed to have occurred if in the context of a
single event or series of related events, more than 50% of the voting power of the Corporation’s
outstanding securities shall be acquired by any person (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended) other than the shareholders of the
Corporation as of December 31, 2005. If a Change in Control and any Change in Control Qualifying
Event (as defined below) shall occur, the Executive shall be permitted to terminate his employment
within sixty (60) days of such Change in Control Qualifying Event (to the extent that
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such Change
in Control Qualifying Event is not the termination of this Agreement by the Corporation as provided
below). For purposes hereof, a “Change in Control Qualifying Event” shall include the
occurrence of any of the following within one hundred eighty (180) days following the occurrence of
the Change in Control: (i) a termination of this Agreement by the Corporation other than for
Cause, (ii) a significant diminution, without mutual agreement of the parties, in the nature and
scope of the Executive’s authority, power, functions or duties, (iii) the Corporation assigns to
the Executive, without mutual agreement of the parties, substantial additional duties or
responsibilities which are inconsistent with the duties of the Executive under this Agreement, or
(iv) the Corporation’s requirement, without the Executive’s prior written consent, that the
Executive perform the duties required of him under this Agreement at a home office location other
than the greater Houston, Texas metropolitan area. Upon the occurrence of a Change of Control or a
Change of Control Qualifying Event, the maximum amount of all stock options that could have been
granted to the Executive under Section 3(g) of this Agreement (to the extent not otherwise
previously granted) shall be deemed granted and shall automatically vest on the effective date of
the Change of Control, regardless of whether the Executive terminates his employment with the
Corporation.
(b) Anything in this Agreement to the contrary notwithstanding, in the event it shall be
determined that the Executive shall become entitled to payments and/or benefits provided by this
Agreement or any other amounts in the “nature of compensation” (whether pursuant to the terms of
this Agreement or any other plan, arrangement or agreement with the Corporation or any affiliate,
any person whose actions result in a change of ownership or effective control of the Corporation
covered by Section 280G(b)(2) of the Code or any person affiliated with the Corporation or such
person) as a result of such change in ownership or effective control of the Corporation (a
“Payment”) would be subject to the excise tax imposed by Section 4999 of the Code or any
interest or penalties are incurred by the Executive with respect to such excise tax (such excise
tax, together with any such interest and penalties, are hereinafter collectively referred to as the
“Excise Tax”), then the Executive shall be entitled to receive an additional payment (a
“Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes
(including any interest or penalties imposed with respect to such taxes), including, without
limitation, any income taxes (and any interest and penalties imposed with respect thereto) and
Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up
Payment equal to the Excise Tax imposed upon the Payments.
(c) All determinations required to be made under this paragraph 6, including whether and when
a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be
utilized in arriving at such determination, shall be made by a nationally or regionally recognized
accounting firm (the “Accounting Firm”) which shall provide detailed supporting
calculations both to the Corporation and the Executive within 15 business days of the receipt of
notice from the Executive that there has been a Payment, or such earlier time as is requested by
the Corporation. The Accounting Firm shall be jointly selected by the Corporation and the Executive
and shall not, during the two years preceding the date of its selection, have acted in any way on
behalf of the Corporation or its affiliated companies. All
fees and expenses of the Accounting Firm shall be borne solely by the Corporation. Any
Gross-Up Payment, as determined pursuant to this paragraph 6, shall be paid by the Corporation to
the Executive within five (5) days of the receipt of the Accounting Firm’s determination. If the
Accounting Firm determines that no Excise Tax is payable by the Executive, it shall furnish the
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Executive with a written opinion, based upon “substantial authority” (within the meaning of Section
6230 of the Code), that failure to report the Excise Tax on the Executive’s applicable federal
income tax return would not result in the imposition of a negligence or similar penalty. Any
determination by the Accounting Firm shall be binding upon the Corporation and the Executive,
absent manifest error. As a result of the uncertainty in the application of Section 4999 of the
Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that
Gross-Up Payments which will not have been made by the Corporation should have been made
(“Underpayment”), consistent with the calculations required to be made hereunder. In the
event that Executive thereafter is required to make a payment of any Excise Tax, the Accounting
Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment
shall be promptly paid by the Corporation to or for the benefit of the Executive.
7. Successors and Assignment. Subject to the Executive’s rights under paragraph 6,
this Agreement shall be binding on, and inure to the benefit of the Corporation and its successors
and assigns and any person acquiring, whether by merger, consolidation, purchase of all or
substantially all of the Corporation’s assets and business, or otherwise without further action by
the Executive; provided however, that Executive hereby agrees to execute an acknowledgement of
assignment if requested to do so by the successor, assign or acquiring person. The Corporation may
assign this agreement to any of its direct and indirect subsidiaries.
8. Nonalienation. The interests of the Executive under this Agreement are not subject
to the claims of his or her creditors, other than the Corporation, and may not otherwise be
voluntarily or involuntarily assigned, alienated or encumbered except to the Executive’s estate
upon his or her death.
9. Waiver of Breach. The waiver by either the Corporation or the Executive of a
breach of any provision of this Agreement shall not operate as, or be deemed a waiver of, any
subsequent breach by either the Corporation or the Executive.
10. Notice. Any notice to be given hereunder by a party hereto shall be in writing
and shall be deemed to have been given when received or, when deposited in the U.S. mail, certified
or registered mail, postage prepaid:
| (a) | to the Executive addressed as follows: | ||
| Xxxxx X. Xxxxxxxxx 00 Xxxxxxxxx Xxxx Xxx Xxxxxxxxx, Xxxxxxxxxxx 00000 Tel: (000) 000-0000 Fax: (203) 637 — 1925 |
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| (b) | to the Corporation addressed as follows: | ||
| Synthesis Energy Systems, Inc. 00000 Xxxxxxxx Xxxxx Xxxxxxx, Xxxxx 00000 Attn: Xxxxxxx X. Xxxx Tel: (713) 898 — 0444 Fax: (713) 979 — 9341 |
11. Amendment. This Agreement may be amended or canceled by mutual agreement of the
parties in writing without the consent of any other person and no person, other than the parties
hereto (and the Executive’s estate upon his death), shall have any rights under or interest in this
Agreement or the subject matter hereof. The parties hereby agree that no oral conversations shall
be deemed to be a modification of this Agreement and neither party shall assert the same.
12. Applicable Law; Jurisdiction. The provisions of this Agreement shall be construed
in accordance with the internal laws of the State of Delaware. Xxxxxx County district courts shall
have jurisdiction with regard to all matters relating to the interpretation and enforcement of this
Agreement.
13. ATTORNEY AND TRIAL COSTS. IN REGARD TO ANY CIVIL ACTION THAT MAY ARISE FROM THIS
AGREEMENT, OR THE RELATIONSHIP OF THE PARTIES HERETO, THE PREVAILING PARTY IN SUCH ACTION SHALL BE
ENTITLED TO RECOVER ITS ATTORNEYS’ FEES AND COSTS INCURRED TO ENFORCE ANY OF ITS RIGHTS HEREUNDER;
PROVIDED, HOWEVER, THAT A PARTY SHALL NOT BE DEEMED A PREVAILING PARTY IN THE EVENT A TEMPORARY
RESTRAINING ORDER OR A TEMPORARY INJUNCTION IS ISSUED IN FAVOR OF SUCH PARTY.
14. Termination. All of the provisions of this Agreement shall terminate after the
expiration of the Employment Period, except that paragraph 4(a) shall survive for five (5) years
after the expiration of this Agreement and paragraph 4(b) shall terminate upon the expiration of
the Non-Competition Period.
15. Publicity. Except as required by law, until the Commencement Date, neither the
Corporation nor the Executive shall issue any press release or make any public statement regarding
this Agreement.
* * *
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IN WITNESS WHEREOF, the Executive and the Corporation have executed this Agreement as of the
day and year first above written.
| /s/ Xxxxx X. Xxxxxxxxx | ||||||
| XXXXX X. XXXXXXXXX | ||||||
| SYNTHESIS ENERGY SYSTEMS, INC. | ||||||
| By: Its: |
/s/ Xxxxxxx X. Xxxx
|
|||||
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