Exhibit 10.3
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AUSTRALIAN OIL & GAS CORPORATION
(incorporated in Delaware, USA)
("the Company")
and
XXXXXX XXXXXXXX XXXXXX
("the Director")
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DEED WITH RESPECT TO TERMS OF
APPOINTMENT AS CHAIRMAN OF DIRECTORS
AND AS EXECUTIVE OFFICER OF THE COMPANY
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THIS DEED is made the fourth day of May 2005
BETWEEN AUSTRALIAN OIL & GAS CORPORATION a company incorporated in
Delaware and having its head office at 0000 Xxxxx Xxxxxxx Xxx,
Xxxxxxxx, Xxxxxxx 00000, Xxxxxx Xxxxxx of America ("the Company"
or "AOGC")
AND XXXXXX XXXXXXXX XXXXXX of "Great Missenden", Great Missenden Way,
Tallarook, Victoria, Australia ("the Director")
WHEREAS
A. The Director has agreed to continue his appointment as the Chairman of
Directors of the Company ("the Directorship Appointment") on the terms and
conditions set out in this Deed. The Director accepted or is deemed to have
accepted appointment as a Chairman of Directors of the Company on 6 August
2003 (the "Effective Date").
B. The Director has previously accepted and further agrees to continue the
appointments as President, Chief Executive Officer and Chief Financial
Officer of the Company ("the Executive Officer Appointment") on the terms
set out herein.
C. The Company accepts liability for the provision of all benefits due
hereunder to the Director as if this Agreement had been executed on the
Effective Date.
D. The Company and the Director desire to execute this Deed for the purpose of
recording the terms upon which the Director has agreed to continue to
maintain appointment both as a director and as an officer of the Company
and the conditions subject to which such appointment shall continue.
NOW THIS DEED WITNESSETH as follows:
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1. INTERPRETATION
"Act" means the Corporations Act (Australia).
"Affiliate" means
(i) a body corporate which at the relevant time is a direct or
indirect subsidiary of the Company;
(ii) a body corporate of which the Company is at the relevant time a
direct or indirect subsidiary; or
(iii) a body corporate which at the relevant time is a direct or
indirect subsidiary of a body corporate of which the Company is a
direct or indirect subsidiary.
For the purposes hereof, `subsidiary' has the meaning specified in the Act.
"Appointment" means the Directorship Appointment and or Executive Officer
Appointment.
"Associate" means a body corporate which is owned as to 20% or more by the
Company or any Affiliate of the Company.
"Board" means all or some of the Directors of AOGC acting as a board of
directors.
"Code" means the General Corporation Law of the State of Delaware, USA.
"Company" and or "AOGC" means Australian Oil & Gas Corporation
(incorporated in Delaware, USA) and is deemed to include any Affiliate or
Associate thereof where the context so permits.
"Contract Remuneration" means the remuneration defined in clause 4.2
hereof.
"Constitution" means the certificate of incorporation and by-laws of the
Company.
"Directorship Appointment" has the meaning set out in clause 2.1 hereof.
"Directorship Remuneration" means the remuneration defined in clause 4.1
hereof.
"Effective Date" is 6 August 2003.
"emoluments" has the meaning given to it in the Act and, without limiting
the generality thereof, includes the remuneration detailed in Clause 4,
Clause 5, Clause 6.4 and the Clause 14.5.
"Executive Officer Appointment" has the meaning set out in clause 2.2
hereof.
"Fund" or "Sacrosanct Superannuation Fund" means the superannuation fund
constituted by the Trust Deed dated 29 October 1997 made by Sacrosanct or
any other fund nominated in substitution thereto by the Director.
"Remuneration" means both the Directorship Remuneration and or the Contract
Remuneration.
"retirement", in relation to the Director, means the death of the Director
or the vacation by the Director of the office of director of the Company.
"Retirement Benefit" means any benefit payable upon the termination of an
Appointment.
"Sacrosanct" means Sacrosanct Pty Ltd (ACN 065 333 860).
"termination", in relation to Director, means:
(a) removal from office in any of the circumstances referred to in Clause
14.1, or
(b) removal from office in accordance with the Constitution of the
Company.
"Trust Deed" means the Deed Poll made by Sacrosanct in relation to the Fund
and dated 29 October 1997.
"Trustee" means Sacrosanct, unless otherwise nominated by the Director, in
which event "Trustee" shall mean the Company nominated as such by the
Director.
A reference to a statute, code or other law includes consolidations, amendment,
re-enactments or replacements of any of them.
2. APPOINTMENT
2.1 During the period from the Effective Date and ending on the retirement
or termination of Appointment of the Director, the terms upon which
and the conditions subject to which the Director's continued
appointment as Chairman of Directors of the Company (the "Directorship
Appointment") shall take place and the emoluments and benefits payable
are those set forth in this Deed. During the period of the
Directorship Appointment, the Company shall employ the Director and
the Director shall serve the Company as a member of the Board and as
its Chairman.
2.2 During the three-year period effective from 1 January 2005 and ending
on 31 December 2007 the Director shall accept the executive positions
and responsibilities of President, Chief Executive Officer and Chief
Financial Officer of the Company (the "Executive Officer
Appointment"). During the period of the Executive Officer Appointment
the Company shall employ the Director as its President, Chief
Executive Officer and Chief Financial Officer on an as-and-when-needed
basis, for a period not exceeding 60 business days per annum.
3. RESPONSIBILITY
3.1 The Director shall:
(a) assume and exercise the powers and perform the duties from time
to time reasonably vested in or assigned to him as Chairman of
Directors and as the President, Chief Executive Officer and Chief
Financial Officer of the Company; and
(b) well and faithfully serve the Company and its subsidiaries and
use his best endeavours to promote their interests and welfare.
3.2 It is acknowledged and hereby approved that the Director may on or
after this date already be or become an executive or a director of
companies in the petroleum exploration industry in Australia or
elsewhere which has operations in competition with the Company.
Unconditional consent is hereby given for participation by the
Director in the management and directorate of such companies, at the
total and absolute discretion of the Director.
4. REMUNERATION
4.1 The remuneration of the Director with respect to the Directorship
Appointment ("Directorship Remuneration") shall be:
(i) such annual amount or other amount to be established as the
Director's fee as shall be determined from time to time by the
Board;
(ii) any contributions with respect to superannuation made pursuant to
Clause 5.1;
(iii) any payments made pursuant to Clause 6 with respect to the cost
of personal directors and officers insurance (if any);
(iv) any payment due on termination pursuant to Clause 14.5;
(v) any Retirement Benefits approved by the Board from time to time.
4.2 Reflecting that the Company's cash resources are limited, the Board
and the Director have agreed to make and accept remuneration of the
Director in relation to the provision of Executive Services pursuant
to the Executive Officer Appointment ("Contract Remuneration") on the
following basis:
(i) by the Company issuing to the Director or, at the election of the
Director, to the Trustee of the Fund, Common Stock in lieu of
cash payments. Specifically, during the fourth quarter of 2005,
the Company will issue 2,500,000 shares of Common Stock for his
services in relation to the period from 1 January 2005 to 31
December 2005. A further 2,000,000 shares of Common Stock are to
be issued for his services for the period from 1 January 2006 to
31 December 2006 and a further 1,500,000 shares of Common Stock
are to be issued for his services for the period from 1 January
2007 to 31 December 2007.
(ii) contributions with respect to superannuation made pursuant to
Clause 5.1;
(iii) any payments made pursuant to Clause 6 with respect to the
cost of personal directors and officers insurance (if any);
4.3 Remuneration shall be provided to the Director by way of such
payments, allowances, benefits, emoluments, grants and contributions
in such manner as in herein provided and, failing such provisions,
then as the Director and the Board determine from time to time.
5. SUPERANNUATION
5.1 The Company shall make superannuation contributions for the benefit of
the Director, as may be determined by the Board, but being not being
less than statutory rates applicable to the emoluments payable
pursuant to this Deed in accordance with the laws of Australia. For
the sake of clarity, it is agreed that the Contract Remuneration in
Clause 4.2(i) is exclusive of superannuation.
5.2 The Director hereby directs the Company to make such superannuation
contributions (whether in full or in part) to the Trustee of the Fund.
5.3 Superannuation contributions made to the Trustee of the Fund pursuant
to this Deed are immediately and fully vested to the benefit of the
Director.
5.4 Lump sum or annuity payments by the Trustee to the Director out of the
Fund with respect to any other superannuation, pension and retirement
schemes to which the Director is or may become a member, shall be
independent of any other benefits and amounts due to the Director
pursuant to this Deed and the making and calculation of such benefits
by the Trustee shall not be to the detriment of any other benefit due
to the Director pursuant to this Deed.
6. ACCESS INDEMNITY AND INSURANCE
6.1 The Company shall, inter alia,
(a) for a period of seven years, hold a complete set of company
records (including board papers and correspondence between the
Company and third parties);
(b) allow the Director full and free access to the company records at
all reasonable times;
6.2 The Company hereby indemnifies the Director, to the maximum extent
permitted by the Code, against liability incurred by the Director as
an Officer and or director of the Company, or as an Officer or
director of an Affiliate or Associate of the Company, other than
liability to the Company or such related body corporate of the Company
arising out of conduct involving a lack of good faith; and
6.3 The Company shall cause each Affiliate and Associate to separately
indemnify the Director, to the maximum extent permitted by the
applicable Code or Act, against liability incurred by the Director as
an Officer and or director of the Company, or as an Officer or
director of an Affiliate or an Associate of the Company, other than
liability to the Company, Affiliate or Associate arising out of
conduct involving a lack of good faith; and
6.4 The Company shall, as and when available to the Company, meet the cost
of a personal directors and officers legal expenses insurance policy
for an amount of not less than $1 million on terms and conditions
usual for such insurance policies with respect to the Director
throughout the period of his Appointment.
7. OTHER PLANS
The Director shall be and is eligible to participate in any Performance
Plan, Directors and Officers Share Option Incentive Plan and Share Plan and
Loan Scheme or any such similar compensation or incentive arrangement, as
may be established from time to time by the Board.
8. EXPENSES
The Company shall reimburse the Director for all travelling, accommodation,
hospitality and general expenses incurred by the Director in connection
with the business of the Company and its subsidiaries and shall, in
addition, reimburse the Director for costs of all meals, beverages,
entertainment, hospitality and like expenses made or incurred in connection
with business conducted on behalf of the Company.
9. MEMBERSHIPS
The Company shall meet the annual cost of the Directors membership of not
more than two industry associations, at the election of the director.
10. CONFERENCES AND SYMPOSIUMS
The Company shall meet all costs and reasonable entertainment expenses of
the Director and his wife for attendance at Conferences or Symposiums
relating to matters relevant to the Company's activities.
11. HOME ENTERTAINMENT AND HOSPITALITY COSTS AND ALLOWANCE
The Company will meet all costs up to a maximum of $5,000 per annum
relating to the entertainment and hospitality extended to business
associates and representatives or other companies or organisations with
which the Company conducts business.
12. TRAVEL AND ACCOMMODATION
All travel and accommodation on behalf of the Company by the Director and
his wife shall be on basis no less favourable to the Director than as
follows:
International Travel: Business Class
Interstate Air travel (not more
than 1 1/4 hours) -
Economy Class (more
than 1 1/4 hours) -
Business Class
Interstate/International Accommodation: Five Star hotel.
13. EXPENSES (FOOD AND BEVERAGE) DURING TRAVEL
All food and beverages consumed and all costs of hospitality incurred by
the Director and or his wife whilst on Company business during travel shall
be met in full by the Company.
14. TERMINATION
14.1 The Company or the Board may terminate or take steps to terminate
either Appointment of the Director should the Director:
(a) becomes disqualified to act pursuant to the Code or pursuant to
the Constitution; or
(b) becomes incapacitated by illness or injury from performing his
duties under this Deed for a continuous period of 12 months or
any periods aggregating 12 months in any continuous period of 24
months;
(c) be in material breach of the terms of this Deed;
(d) be convicted of any criminal offence which in the reasonable
opinion of the Board brings the Board or the Company or any of
its related bodies corporate into serious disrepute;
(e) become bankrupt or make a composition or arrangement with his
creditors generally or takes advantage of any statute for the
relief of insolvent debtors; or
(f) become of unsound mind or a person whose person or estate is
liable to be dealt with under any law relating to mental health.
14.2 Where the Company or the Board decides to terminate the Appointment
for a reason specified in Clause 14.1, it shall do so by giving notice
effective forthwith and paying all Remuneration accrued to the date of
termination, but without prejudice to any other rights or remedies of
either party under, or in respect of any breach of, this Deed.
14.3 The Appointment shall be terminated upon the Director being removed
from office by vote of shareholders pursuant to the Constitution.
14.4 The Director's Appointment as Chairman of the Company may be
terminated by the Board in accordance with its procedures.
14.5 Upon termination of the Directorship Appointment in either of the
circumstances referred to Clause 14.3 or in clause 14.4, the Director
shall be paid by the Company, in addition to any payments due pursuant
to this Deed, a lump sum equal to the last three years Directorship
Remuneration.
14.6 Upon termination of the Appointment, however and whenever occurring,
the Director will be entitled to payment of Remuneration which he
became entitled during or upon termination of the Appointment
(including a pro rata entitlement for the period after the last
anniversary of the commencement of the Appointment) but which he did
not take prior to the termination of the Appointment, and to payment
of all accrued Retirement Benefits and all accumulation thereto.
15. RETIREMENT FROM DIRECTORSHIP APPOINTMENT
15.1 The Director may retire from the Directorship Appointment in the
manner specified in Clause 15.2 at any time, if the Director:
(a) is requested to assume responsibilities or perform tasks not
reasonably consistent with his position as Chairman of Directors
of the Company; or is
(b) required to consistently attend meetings of the Board out of
Melbourne, Australia.
15.2 Should the Director decide to retire from the Directorship Appointment
for a reason specified in Clause 15.1, he shall do so by giving the
Company three months previous written notice of his decision to
terminate the Directorship Appointment setting out the reason for
termination and the Directorship Appointment shall terminate on the
expiry of the notice period. Upon such termination the Director shall
be entitled a lump sum equal to one years Directorship Remuneration.
15.3 The Director may retire from the Directorship Appointment for any
reason other than those specified in Clause 15.1 or retire from the
Directorship Appointment without any prior notice of resignation and
the Directorship Appointment shall end forthwith.
15.4 Upon retirement from the Directorship Appointment, however and
whenever occurring, the Director will be entitled to payment of
Directorship Remuneration which he became entitled during the
Directorship Appointment (including a pro rata entitlement for the
period after the last anniversary of the commencement of the
Directorship Appointment) but which he did not take prior to
retirement from the Directorship Appointment.
16. COVENANTS BY DIRECTOR
16.1 The Director hereby covenants and undertakes that following the
termination of the Appointment or retirement (however occurring) he
will not represent himself as being in any way connected with or
interested in the business of the Company or any related bodies
corporate.
16.2 The Director hereby covenants and undertakes that upon the termination
of the Appointment or retirement (however occurring) that he will
immediately deliver up to the Company all property belonging to the
Company or any subsidiary which may be in his possession.
17. PAYMENT OF OUTSTANDING AMOUNTS ON DEATH
Upon the death of the Director, the Company shall pay all outstanding
amounts due to the personal legal representative of the Director.
18. VARIATION
This Deed shall not be changed or modified in any way subsequent to its
execution except in writing signed by the Company and the Director.
19. PARTIAL INVALIDITY
If any of the provisions of this Deed are found to be illegal, invalid or
unenforceable then that illegality, invalidity or unenforceability shall
not aversely affect the validity of any other provisions of this Deed to
the intend that any illegal, invalid or unenforceable provision is to be
treated as for all purpose severed from this Deed without effecting any
remaining provisions.
20. MISCELLANEOUS
20.1 This Deed (and any dispute, controversy, proceedings or claim or
whatever nature arising out of or in any relating to this Deed or its
formation) shall be governed by and construed in accordance with laws
of Victoria, Australia.
20.2 Each of the parties to this Deed irrevocably agrees that the Courts of
Victoria shall have jurisdiction to hear and decide any suit, action
or proceedings, and/or to settle any disputes, which may arise out of
or in connection with this Deed and, for these purposes, each party
irrevocably submits to the non-exclusive jurisdiction of the Courts of
Victoria.
IN WITNESS WHEREOF the parties have executed this Deed on the date first above
written.
Signed Sealed and Delivered by
XXXXXX XXXXXXXX XXXXXX
in the presence of: XXXXXX XXXXXXXX XXXXXX
XXXX XXXXXXX XXXXXX
Executive for and on behalf of )
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AUSTRALIAN OIL & GAS CORPORATION )
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by authority of the Board of Directors )
in the presence of: XXXXX XXXXX XXXX
Director
XXXX XXXXXXX XXXXXX
XXXXXXX XXX XXXX
Director
