AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit
10.1
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This
Agreement is made as of 27 January 2009.
Between
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(1)
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Pacific Asia
Petroleum, Inc., a Delaware company headquartered at 000
Xxxx Xxxxxxxxx Xxx., Xxxxx 00, Xxxxxxxxx, Xxx Xxxx 00000,
U.S.A. (the
“Employer”);
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And
(2) Xxxxxxx Xxxxx, an
individual of Xxxx 00 X, 00/X, Xxxxxx Xxx. 1, 41 Man Yue Street, Xxxx Xxx,
Kowloon, Hong Kong (the
“Employee”).
Whereas
it is agreed as follows:
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A.
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AMENDMENT AND
RESTATEMENT OF PRIOR EMPLOYMENT
AGREEMENT.
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This
Amended and Restated Employment Agreement (this “Agreement”) amends
and restates in full that certain Employment Agreement, dated August 1, 2008,
entered by and between the Employer and the Employee.
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1.
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Appointment
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1.1
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With
this Agreement, the Employer shall employ the Employee and the Employee
shall serve the Employer in the capacity of Managing Director of the
Employer on the terms and conditions hereinafter
appearing.
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1.2
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The
Employee’s term of employment under this Agreement (the “Term”) shall
commence on the date of this Agreement and shall continue for a period
ending on the third anniversary of such date, unless sooner terminated in
accordance with the terms of Section
8.1.
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2.
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Working
Location
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2.1
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The
Employee shall provide his services to the Employer based out of the
Employer’s Beijing offices located at Yi, Xx. 000, Xxxx Xxx Xxxx, Xxxxx
0000, Xxxx Xxx Da Sha (The Exchange Building), Xxxx Xxxx District,
Beijing, 100022, PRC, and such other locations where the Employer or its
subsidiaries or affiliates may conduct its operations. The
Employee further agrees that, in connection with the services he is
required to provide under this Agreement, that he will be required to
travel frequently at the request of the Employer. This
Agreement shall govern the terms of the employment of the Employee
wherever he provides the services he is required to provide under this
Agreement.
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3.
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Power and
Duties
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3.1
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The
Employer agrees to employ the Employee as the Managing Director of the
Employer. In his position as Managing Director, the Employee
will have responsibility for managing the Employer’s activities as
appropriate and as required under the guidance of the Employer’s Chief
Executive Officer, and he shall have such duties, responsibilities and
authority as shall be consistent with that position. The Employee shall
report to the Chief Executive Officer of the Employer, and follow his
instructions and also instructions from the Employer’s Board of Directors.
During the continuance of his employment hereunder, the Employee shall
devote his full time, attention, knowledge and skills, and to the best of
his ability, in furtherance of the business of the Employer, and shall
faithfully and diligently perform such duties and exercise such powers as
may from time to time be assigned to or vested in him by the
Employer.
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Page 1
of 7
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3.2
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The
Employee shall devote his full-time services exclusively for the Employer
unless otherwise agreed in writing, and shall not during the continuance
of his employment, either directly or indirectly, and whether as
principal, servant, agent or otherwise be engaged, concerned or interested
in any other commercial work unless such other commercial work shall have
been specifically disclosed to, and approved in writing by the Employer,
and a written arrangement concerning such other commercial activity has
been arrived at with the Chief Executive
Officer.
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3.3
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The
Employee agrees not to bring with him to the Employer, or use or disclose
to any person associated with the Employer, any confidential or
proprietary information belonging to any former employer or other person
or entity with respect to which the Employee owes an obligation of
confidentiality under any agreement or otherwise. The Employer
does not need and will not use such information and the Employer will
assist the Employee in any way possible to preserve and protect the
confidentiality of proprietary information belonging to third
parties.
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3.4
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The
Employee shall hold and keep confidential for the benefit of the Employer
all secret or confidential information, files, documents and other media
in which confidential information is contained, knowledge or data
relating to the Employer, or any of its subsidiaries or affiliated
companies, and their respective businesses, which shall have been obtained
by the Employee during his employment by, or consulting engagement with,
the Employer (“Confidential
Information”). Confidential Information does not include
information that is already public knowledge at the time of disclosure
(other than by acts by the Employee or his representatives in violation of
this Agreement) or that is provided to the Employee by a third party
without an obligation with the Employer to maintain the confidentiality of
such information. After termination of the Employee's
employment with the Employer, he shall not, without the prior written
consent of the Employer, or as may otherwise be required by law or legal
process, communicate or divulge any Confidential Information to anyone
other than the Employer and those designated by it. The
Employee shall not either during or after termination of his employment
hereunder use to the detriment or prejudice of the Employer or divulge or
communicate to any person or persons any trade secrets of the Employer or
any other Confidential Information which he may receive or obtain in
relation to the affairs of the
Employer.
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3.5
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The
Employee expressly acknowledges that any industrial and intellectual
property rights in the works invented, created or developed pursuant to
the performance of his duties at the request of the Employer are invented,
created or developed on behalf and for the exclusive benefit of the
Employer and that all industrial and intellectual property rights in such
works are therefore the sole and exclusive property of the
Employer. The Employee hereby assigns to the Employer
absolutely all such industrial and intellectual property rights in such
works together will all modifications and amendments thereto which have
been or will at any time in the future invested, created or
developed.
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3.6
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The
Employee undertakes at the request and expense of the Employer to do all
acts and execute all documents which may be necessary to confirm the title
of the Employer to the industrial and intellectual property rights in the
work as provided in clause 3.5 above whether in connection with
registration of such title or
otherwise.
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Page 2
of 7
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4.
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Working
Hours
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4.1
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The
Employee shall devote himself exclusively and diligently to the business
and interests of the Employer at all times during usual business hours and
during such other times as the Employer may reasonably require except in
case of incapacity through illness or accident or any other reasonable
cause.
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4.2
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In
general terms the Employee will allocate his work time as
follows:
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a)
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10%
undertaking his duties and responsibilities as the Chief Representative of
Pacific Asia Petroleum Ltd’s Beijing Representative Office in
China.
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b)
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55%
undertaking his duties and responsibilities as the Responsible Person
related to the various Production Sharing Contracts entered into by
Pacific Asia Petroleum Ltd within China.
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c)
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35%
undertaking his duties and responsibilities as required to manage the
Chinese interests of Inner Mongolia Petroleum Company Ltd including the
Inner Mongolia Sunrise Petroleum
JV.
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4.3
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The
Employee shall be entitled to all holidays he is entitled under the
applicable laws and regulations and as established by the
Employer.
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5.
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Remuneration
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As remuneration for his services hereunder, the Employee shall be entitled to
receive for so long as his employment hereunder shall continue:
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5.1
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a
fixed salary at the rate of nine hundred ninety thousand RMB (990,000 RMB)
per full year of employment, such salary to be payable pro rata monthly in
arrears in accordance with the Employer’s normal payroll policies, and to
be deposited into such bank account as specified by the Employee in
writing (“Base
Salary”). Such Base Salary will be paid to the Employee without
deduction of tax (except as provided in clause 9.3 or where tax
regulations require the Employer to withhold tax and pay it to relevant
tax authorities on behalf of the Employee) or other deductions and in such
currency as the Employee may request from time to time based on the
average exchange rate for the month for which the salary is
due.
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5.2
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The
Employee shall be reimbursed a maximum of 30,000 RMB per month for
accommodation expenses in Beijing, China upon the production of
appropriate receipts and documentation
thereof.
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5.3
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The
Employee shall be entitled, as a performance incentive and at the sole
discretion of the Employer’s Board of Directors, to participate in the
Employer’s 2007 Stock Plan.
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5.4
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The
Employer agrees that the Employee shall be entitled to be reimbursed
out-of-pocket expenses exclusively incurred in the performance of this
Agreement in accordance with the Employer’s expense policies, and provided
further that the Employee shall fly in business class travel for all
international flights, except flights between Beijing and Hong
Kong.
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| 5.5 |
The
Employee shall be entitled to reimbursement for all of his taxi and
similar local transportation costs.
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Page 3
of 7
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6.
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Annual
Leave /Vacation
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6.1
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The
Employee shall be entitled hereunder to a paid annual leave totaling 30
working days during each calendar year, to be taken from time to time as
mutually agreed with the
Employer.
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6.2
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All annual leave must be taken within 12 months following the calendar
year in which it is earned, otherwise, it shall be forfeited unless
mutually agreed otherwise between the Employer and the
Employee.
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6.3
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The
outstanding annual leave cannot be used as deduction of the termination
notice period.
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7.
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Sick
Leave
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7.1
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The
Employer currently has no sick leave policy, however the Employee shall be
entitled to a minimum paid sick leave of 10 days per calendar year or such
greater number of days as maybe mutually agreed between the Employer and
the Employee from time to time
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7.2
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Any
untaken sick leave will accrue from year to
year.
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8.
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Termination
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8.1
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Termination
and Payments Upon Termination.
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(a)
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Employee
or the Employer may terminate this Agreement for any reason or for no
reason at all at any time, with or without Cause (as defined below),
during or after the Term, by providing the other party with notice of
termination as provided in Section 8.1(c). The Employer
shall pay Employee his Base Salary and all other amounts, in each such
case, actually earned, accrued or owing as of the date of termination but
not yet paid to Employee through the date of termination; provided that if
the Employee is terminated by the Employer without Cause (as defined
below) after the date of this Agreement, then, in addition to the payments
described in this Section 8.1(a), the Employer shall pay Employee a
lump sum payment in an amount equal to fifty percent (50%) of
Employee’s then-current annual Base Salary at the time he is terminated.
The payment of the lump sum amount under this Section 8.1(a) shall be
made on the earlier of the date ending on the expiration of thirty days
following the earlier of the date of termination of Employee’s employment
or the death of the Employee; provided that notwithstanding the foregoing,
to the extent any payment under this Section 8.1(a) is “nonqualified
deferred compensation” and/or the Employee is considered a “key employee”
of the Employer within the meaning of Section 409A of the Internal
Revenue Code and the Treasury Regulations promulgated thereunder, then
such payment shall be made on the date ending on the expiration of the
sixth month following the earlier of the date of termination of Employee’s
employment or the Employee’s death.
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(b)
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For
purposes of this Agreement, “Cause” shall mean (i) Employee’s gross
and willful misappropriation or theft of the Employer’s or its
subsidiary’s or affiliate’s funds or property, (ii) Employee’s
commission of any fraud, misappropriation, embezzlement or similar act,
whether or not a punishable criminal offense, or Employee’s conviction of
or entering of a plea of nolo contendere to a charge of any felony or
crime involving dishonesty or moral turpitude, (iii) Employee’s
engagement in any willful conduct that is injurious to the Employer or its
subsidiaries or affiliates, (iv) Employee’s material breach of this
Agreement or failure to perform any of his material duties owed to the
Employer or its subsidiaries or affiliates, or (v) Employee’s
commission of any act involving willful malfeasance or gross negligence or
Employee’s failure to act involving material
nonfeasance.
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(c)
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Any
termination of this Agreement by the Employer or by Employee shall be
communicated in writing to the other party before the date on which such
termination is proposed to take effect and, unless otherwise agreed to by
the Employer and the Employee, shall be effective sixty (60) days
after such notice, except that there shall be no 60 day notice period in
the event of Employee’s termination for “Cause” by the
Employer
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| (d) | From and after the termination of this Agreement by the Employer or by the Employee, the Employee agrees to do or cause to be done all other things and acts, to execute, deliver, file and perform or cause to be executed, delivered, filed and performed all other instruments, documents and certificates as may be reasonably requested by the Employer or are necessary, proper or advisable in order to effect the removal, transition, substitution or modification of the Employee as an officer, agent, affiliate, director, manager or authorized representative of the Employer or any other positions that the Employee holds with the Employer or its subsidiaries or affiliates providing the cost of doing such things is paid for by the Employer. |
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8.2
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Termination
of the Employee’s employment and appointment hereunder shall be without
prejudice to any rights which have accrued to the Employer at the time of
termination pursuant to Sections 3.4 through 3.6, Section 14 and this
Section 8 (which shall remain in full force and
effect).
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Page 4 of
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| 9. |
Miscellaneous
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9.1
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During
the continuance of his employment hereunder, the Employee shall not accept
or solicit any commission or gift of any kind from contractors, suppliers
or clients of the Employer.
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9.2
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The
Employee shall indemnify and hold the Employer harmless from any
actions, claims or assessments of any nature
relating to any of his/her business or personal affairs unrelated to his
employment hereunder.
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9.3
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The
Employee is responsible for any personal tax obligations arising in China
or elsewhere during the continuance of his employment. Where requested by
the Employee, the Employer will make agreed deductions of tax and pay it
on the Employees behalf to the relevant Chinese tax authorities and
provide suitable certificates to substantiate such
payments.
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9.4
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This
Agreement shall not be determined or affected by any change in the
composition of the Employer and the Employee as long as the Employer shall
continue in business unless and until terminated as herein
provided.
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9.5
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In
conformity with the United States Foreign Corrupt Practices Act and the
Employer’s guidelines related thereto, the Employee represents and
warrants that he shall not directly or indirectly make an offer, payment,
promise to pay, or authorize payment, or offer a gift, promise to give, or
authorize the giving of anything of value for the purpose of influencing
an act or decision of an official of any government or the United States
government (including a decision not to act) or inducing such a person to
use his influence to affect any such governmental act or decision in order
to assist the Employer, or any subsidiary or affiliate thereof, in
obtaining, retaining or directing any such
business.
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| 10. |
Entire
Agreement
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10.1
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This
Agreement is intended to be the final, complete, and exclusive statement
of the terms of Employee’s employment by the Employer. Except
for any stock option, restricted stock purchase or confidentiality
agreements that have been entered, or may be entered into in the future,
by and between the Employer and the Employee, this Agreement supersedes
all other prior and contemporaneous agreements and statements pertaining
in any manner to the employment of Employee and it may not be contradicted
by evidence of any prior or contemporaneous statements or
agreements. To the extent that the practices, policies, or
procedures of the Employer, now or in the future, apply to Employee and
are inconsistent with the terms of this Agreement, the provisions of such
practices, policies or procedures shall control. The Employee and the
Employer explicitly agree that this is a new employment agreement between
them, and that all agreements that may have existed between them before
the employment of, or consulting engagement with, the Employee have been
terminated and fully satisfied.
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10.2
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If
at any time any provision hereof is or becomes illegal, invalid or
unenforceable in any respect, neither the legality, validity nor
enforceability of the remaining provisions hereof shall be in any way
affected or impaired hereby.
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10.3
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This
Agreement may not be modified or amended except by a written agreement,
signed by an officer of the Employer and by the
Employee.
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| 11. |
Government and
Arbitration
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11.1
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Governing
Law. This Agreement shall be governed by the laws of England and
Wales. If one or more provisions of this Agreement are held to be
unenforceable under applicable law, the parties agree to renegotiate such
provision in good faith. In the event that the parties cannot
reach a mutually agreeable and enforceable replacement for such provision,
then (i) such provision shall be excluded from this Agreement,
(ii) the balance of the Agreement shall be interpreted as if such
provision were so excluded and (iii) the balance of the Agreement
shall be enforceable in accordance with its
terms.
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11.2
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Arbitration. Any
dispute or claim arising out of or in connection with any provision of
this Agreement will be finally settled by binding arbitration in London,
England, in accordance with the rules of the International Chamber of
Commerce ("ICC") by one arbitrator appointed in accordance with said
rules. The arbitrator shall apply English law, without
reference to rules of conflicts of law or rules of statutory arbitration,
to the resolution of any dispute. Judgment on the award
rendered by the arbitrator may be entered in any court having jurisdiction
thereof. Notwithstanding the foregoing, the parties may apply
to any court of competent jurisdiction for preliminary or interim
equitable relief, or to compel arbitration in accordance with this
paragraph, without breach of this arbitration
provision.
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Page 5
of 7
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12.
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Advice of
Counsel
EACH
PARTY ACKNOWLEDGES THAT, IN EXECUTING THIS AGREEMENT, SUCH PARTY HAS HAD
THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL, AND HAS
READ AND UNDERSTOOD ALL OF THE TERMS AND PROVISIONS OF THIS
AGREEMENT. THIS AGREEMENT SHALL NOT BE CONSTRUED AGAINST ANY
PARTY BY REASON OF THE DRAFTING OR PREPARATION
HEREOF.
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13.
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Notices
Any
notice, request, or other communication required or permitted pursuant to
this Agreement shall be in writing and shall be deemed duly given when
received by the party to whom it shall be given or three days after being
mailed by certified, registered, or express mail, postage prepaid,
addressed as follows:
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If to
Employer:
Pacific
Asia Petroleum, Inc.
000 Xxxx
Xxxxxxxxx Xxx
Xxxxx
00
Xxxxxxxxx,
Xxx Xxxx 00000 XXX
Attention:
Chief Executive Officer
If to
Employee:
Xxxxxxx
Xxxxx
Xxxx 00
X, 00/X,
Xxxxxx
Xxx.
1, 00 Xxx
Xxx Xxxxxx,
Xxxx
Xxx,
Xxxxxxx,
Xxxx
Xxxx
Page 6
of 7
or to such
other address as either party may have furnished to the other in writing in
accordance herewith, except that notices of change of address shall be effective
only upon receipt.
| 14. |
Non-Competition
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14.1
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In
consideration of the Employer’s willingness to enter into this Agreement,
the Employee agrees that while this Agreement is in effect and for 12
months after its termination, the Employee will not accept any employment
or engage in any activity, without the written consent of the Board, if
the loyal and complete fulfillment of the Employee’s duties in such
employment would inevitably require him to reveal or utilize Confidential
Information, as reasonably determined by the
Board.
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14.2
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By
agreement between the parties at any time the terms of this clause may be
varied, reviewed or modified so long as any such variation, review or
modification is in writing and signed by both
parties.
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IN WITNESS WHEREOF this
Agreement has been entered into the day and year first above
written.
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For
and On behalf of
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Pacific Asia Petroleum,
Inc.
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/s/
Xxxxx X. Xxxxxxxxxx
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Xxxxx
X. Xxxxxxxxxx
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Signed
by
Xxxxxxx
Xxxxx
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/s/
Xxxxxxx Xxxxx
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Page 7
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