EXHIBIT 10.30
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement (this "Agreement") is made
and entered into this 20th day of April, 1999, by and between XXXX
X. XXXXXX ("Executive") and EUROGAS, INC., a Utah corporation
("EuroGas" or the "Company"), based on the following:
The Board of Directors of EuroGas (the "Board") has determined
that it is in the best interests of EuroGas and its shareholders for
EuroGas to employ the Executive and to provide the Executive with
compensation and benefits arrangements which ensure that his
expectations with respect to compensation and benefits will be
satisfied and which are competitive with those of other corporations.
Agreement
NOW, THEREFORE, based on the foregoing premises, which are
incorporated herein by reference, and for and in consideration of
the mutual covenants and agreements hereinafter set forth and the
mutual benefit to the parties to be derived herefrom, it is hereby
agreed as follows:
1. Employment and Term.
(a) EuroGas hereby employs Executive and Executive hereby
accepts employment upon the terms and conditions set forth
herein. The term of employment of the Executive under this
Agreement will commence on April 20, 1999, or such earlier date
as mutually agreed, and will end at midnight, London, England
time, on the third anniversary of the date the term of
employment commences; provided, however, that such term shall
automatically be extended for an additional three-year period
commencing on the third anniversary of the date hereof unless
Executive or EuroGas by written notice to the other not less
than 60 days prior to such anniversary notifies the other that
the term hereof shall not be so extended (such term of
employment, as the same may be extended from time to time as
provided herein, is referred to in this Agreement as the
"Employment Period").
(b) During the Employment Period, Executive will serve as
EuroGas' President and Chief Executive Officer, reporting to
the Chairman of the Board of Directors. Executive shall have
full authority to manage and operate the Company with the
concurrence of the Board of Directors. Executive shall be
appointed a director of the Company promptly upon his assuming
his position. The Company shall take all necessary action to
cause Executive to be elected a member of the Board of
Directors at such time as he is required to be elected by the
shareholders to the Board of Directors. Executive shall serve
as a member of the Board and the Executive Committee of the
Board at all times during the Employment Period. Executive
agrees to serve as President and Chief Executive Officer of
EuroGas and agrees to perform such duties appropriate for such
offices as may be assigned to him from time to time by the
Chairman of the Board and as described in the bylaws of
EuroGas, reporting to the Chairman of the Board and subject to
the oversight of the Board of Directors.
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(c) The Executive shall have the right to nominate
individuals for election to the Board of Directors of the Company.
(d) During the Employment Period, the Executive shall
reside in London, England and the services to be provided by
him hereunder shall be performed in London, England and in such
other locations as EuroGas has offices and operations.
Executive shall undertake travel as is necessary for the
business at the Company's expense, by business class or better.
2. Performance of Services.
(a) During the Employment Period, Executive agrees to
perform faithfully the duties of President and Chief Executive
Officer, to devote his full and undivided business time,
attention, and services to the business of EuroGas; provided,
however, that nothing herein shall restrict Executive from
conducting incidental personal business that does not conflict
with his obligations under the terms of this Agreement or from
investing in the equity of any other entity (whether public or
private), in any amount Executive deems advisable in his sole
discretion, even if such other entity is indirectly in
competition with EuroGas or any of its subsidiaries;
(b) Executive shall observe and comply with the
commercially reasonable operating rules and regulations of
EuroGas respecting its business and shall carry out and perform
such lawful orders, directions, and policies of EuroGas as they
may be from time to time communicated to Executive by the
Chairman of the Board of Directors either orally or in writing.
Executive shall make good faith efforts to observe and comply
with all applicable rules, regulations, and laws governing the
business of EuroGas known to Executive.
3. Exclusivity of Services and Nondisclosure of Confidential
Information.
(a) Executive agrees that, in the event the Executive
voluntarily terminates his employment with EuroGas during the
Employment Term, other than for Good Reason (as defined below),
or is terminated by EuroGas for Cause pursuant to Subsection
6(a), for a period ending on the first anniversary of the
termination of the Employment Period:
(i) he will not engage in any Covered Activity (as
defined below) in competition with the business of EuroGas
or any of its subsidiaries (the "EuroGas Group"), directly
or indirectly, in the Covered Area (as defined below),
whether as employer, director, officer, employee,
consultant, or agent, except that it is expressly
understood that Executive may invest in the equity of any
other entity, in whatever amount he deems advisable in his
sole discretion, even if such entity is directly or
indirectly in competition with the business of EuroGas or
any of its subsidiaries;
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(ii) he will not solicit, in competition with the
EuroGas Group, any person who is a customer of the
business conducted by the EuroGas Group and to whom
EuroGas provides contracts or services related to any
Covered Activity in the Covered Area at any time during
the Employment Period; and
(iii) he will not induce or attempt to persuade any
employee of the EuroGas Group to terminate his or her
employment relationship in order to enter into employment
with any party engaged in any Covered Activity in the
Covered Area in competition with the EuroGas Group.
(b) Executive further agrees that he will not, at any
time during the Employment Period or at any time after the
termination of this Agreement, irrespective of the time,
manner, or cause of termination, use, disclose, copy, or assist
any other person or firm in the use, disclosure, or copying of
any trade secrets or other Confidential Information, as defined
below, of the EuroGas Group, except to the extent authorized in
writing by EuroGas or as required in connection with the due
and proper performance of his duties under this Agreement.
Upon termination of his employment hereunder, Executive will
surrender to EuroGas all records and other documents containing
Confidential Information, as defined below, obtained by him or
entrusted to him during the course of his employment by EuroGas
(together with all copies thereof); provided, however, that
Executive may retain copies of such documents as are necessary
for Executive's personal records for income tax and other
personal purposes. For purposes of this Section 3,
"Confidential Information" shall be defined as proprietary
information about the business of the EuroGas Group which has
not been published or is not generally or publicly known
outside the EuroGas Group, or has not been recognized as
standard practice outside the EuroGas Group. The provisions of
this Subsection 3(b) shall remain in effect for a period of
three (3) years subsequent to the termination of the Employment
Period.
(c) The following provisions shall apply to the covenants
of Executive contained in this Section 3:
(i) The activities in which the Executive will be
restricted from engaging pursuant to Subsection 3(a) above
(the "Covered Activities") will consist of the exploration
for, and development and production of, oil and gas
reserves, including coal bed methane gas reserves.
(ii) The covenants contained in clauses (i) and (ii)
of Subsection 3(a) shall apply in the area (the "Covered
Area") within 100 miles of any location where EuroGas is
actively engaged in conducting any Covered Activity at the
termination of the Employment Period and those locations
in which the EuroGas Group has publicly or internally
issued written plans to conduct such activities which have
been approved by the Board of Directors of EuroGas prior
to the termination of the Employment Period.
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(iii) Executive agrees that a breach or threatened
breach on his part of any covenant contained in this
Section 3 will cause such damage to EuroGas as will be
irreparable. Therefore, without limiting the right of
EuroGas to pursue all other legal and equitable remedies
available for violation by Executive of the covenants
contained in this Section 3, it is expressly agreed that
remedies other than injunctive relief cannot fully
compensate the EuroGas Group for such a violation and that
EuroGas and the EuroGas Group shall be entitled to seek
injunctive relief to prevent any such violation or
continuing violation thereof.
(iv) It is the intent and understanding of each party
hereto that if, in any action before any court or agency
legally empowered to enforce the covenants contained in
this Section 3, any term, restriction, covenant, or
promise contained therein is found to be unreasonable and
for that reason unenforceable, then such term,
restriction, covenant, or promise shall be deemed modified
to the extent necessary to make it enforceable by such
court or agency.
(v) The Executive shall not be subject to the
restrictions set forth in Subsection 3(b) with respect to
information which (A) was in Executive's possession or was
known to him prior to his receipt of it; (B) was
subsequently independently developed by Executive without
the use of such Confidential Information; (C) has become
part of the public domain by publication or otherwise
without Executive's fault; (D) is required to be disclosed
by court, government order or regulation; (E) is approved
for disclosure or use by the Company.
4. Compensation and Benefits. For all services rendered by
Executive pursuant to this Agreement, EuroGas shall compensate
Executive as follows:
(a) As annual compensation for Executive's services
hereunder, in accordance with its normal payroll practices,
EuroGas agrees to pay Executive during the Employment Period a
base salary of US$400,000 per annum, payable in equal
semi-monthly installments, with any annual increase (should
there be one), as shall be determined in the sole discretion of
the Board of Directors of EuroGas or the designated
compensation committee thereof, taking into consideration the
performance of EuroGas and its subsidiaries, and the
contribution of Executive to such performance, and such other
factors as the Board of Directors or the designated
compensation committee thereof may deem appropriate. In
addition, the rate of salary may be further or otherwise
increased at any time and in such amount as the Board of
Directors or the designated compensation committee thereof may
determine appropriate. In no event may the base salary of the
Executive be decreased at any time during the Employment Period
without the prior written consent of the Executive.
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(b) EuroGas may provide to Executive such money bonuses
and additional grants of stock options as shall be determined
appropriate in the sole discretion of the Board of Directors or
the designated compensation committee thereof, taking into
consideration the performance of EuroGas and its subsidiaries,
and the contribution of Executive to such performance, or such
other factors as the Board or the designated compensation
committee thereof may deem appropriate.
(c) Upon the execution hereof, EuroGas shall grant to
Executive an option to acquire 1,000,000 shares of common stock
of EuroGas at a per share exercise price of fair market value
on the date of grant at any time prior to ten years from date
of grant. Such option shall vest and Executive shall have the
right to exercise the full amount of such option beginning
January 1, 2000 (the "Vesting Date"). No later than the
Vesting Date all shares of common stock issuable upon the
exercise of the option shall be registered by an effective
registration statement on Form S-8 kept current by EuroGas
until at least three months after such time as the options are
no longer exercisable or have all been exercised. The option
granted to the Executive shall not be subject to forfeiture
except as expressly provided herein. Executive and EuroGas
shall enter into a mutually acceptable stock option agreement
containing the foregoing provisions among others within a
reasonable period after the execution of this Agreement.
(d) Executive shall receive a housing allowance or
housing reasonably acceptable to Executive. In either case,
housing shall be in the form of a furnished rental apartment in
an area of London, England reasonably acceptable to Executive
and the Company. If Executive receives a housing allowance, it
shall be in an amount not less than US$1,750.00 per week (the
"Housing Allowance"). Executive shall also receive an
allowance for commodities and services in an amount not less
than US$600.00 per week (the "Commodities and Services
Allowance"). With respect to the Commodities and Services
Allowance and the Housing Allowance, Executive shall also
receive a tax make up from the Company such that Executive will
receive the Commodities and Services Allowance and the Housing
Allowance net (or value of the housing supplied by the Company,
if such be the case) of all taxes due on such amounts.
(e) EuroGas shall include Executive as a participant in
any stock option or benefit plans hereinafter adopted,
including but not limited to, incentive stock option plans,
director stock option plans, or 401k retirement plans in
accordance with the most favorable plans, practices, programs,
and policies of EuroGas in effect for similarly situated
executives. However, EuroGas shall not be required to adopt
any such plans.
(f) EuroGas shall provide to Executive in London, England
suitable executive offices and facilities appropriate for
Executive's position and suitable for the performance of
Executive's responsibilities.
(g) Executive shall be entitled to vacation of at least
four weeks in any calendar year or such greater period of time
as may be mutually agreed by EuroGas and the Executive.
Vacations shall be taken by Executive at any time and with
starting and ending dates mutually convenient to EuroGas and
Executive. Vacations or portions of vacations not used in one
employment year shall carry over to the succeeding employment
year, but shall thereafter expire if not used within such
succeeding year.
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(h) EuroGas shall reimburse Executive for all proper
expenses incurred by him in the performance of his duties
hereunder.
(i) The Company shall pay Executive's relocation expenses
from the United States to London.
(j) To the extent EuroGas has such plans, practices, programs
and policies, EuroGas shall provide Executive, at EuroGas'
expense, with life and disability insurance policies in
accordance with the most favorable plans, practices, programs,
and policies of EuroGas in effect for similarly situated
executives. To the extent EuroGas has such plans, practices,
programs and policies, EuroGas shall further provide to
Executive incentive, retirement, pension, profit sharing, stock
option, or other employee benefit plans which are consistent
with and similar to such plans provided by EuroGas to its
executive employees generally in accordance with the most
favorable plans, practices, programs, and policies of EuroGas
in effect for similarly situated executives. Executive shall
also have the right to participate in any other employee
benefit programs provided by the EuroGas Group in accordance
with the most favorable plans, practices, programs, and
policies of EuroGas in effect for similarly situated executives.
(k) EuroGas shall make available to Executive the
services of Ernst & Young to assist Executive in his tax return
preparation in light of Executive's status as an expatriate.
Any cost shall be borne by the Company.
(l) EuroGas shall make low-cost loans to Executive to
make purchases of the stock of the Company in a principal
amount to be determined at a later date and mutually agreed,
which shall be repaid on terms reasonably acceptable to
Executive and mutually agreeable to Executive and the Company
agreed upon at the time any such loans are made.
(m) EuroGas shall assume and pay reasonable dues of
Executive in local, state, and national societies and
associations, and in such other clubs and organizations, as
shall be approved and authorized by the board of directors of
EuroGas.
(n) EuroGas shall withhold from Executive's compensation
hereunder all proper federal and state payroll taxes and income
taxes on compensation paid to Executive and shall provide an
accounting to Executive for such amounts withheld.
(o) EuroGas shall reimburse Executive for legal expenses
incurred by him in the preparation and negotiation of this
Agreement.
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(p) The Company will reimburse Executive (with an amount
net of U.S. taxes) for foreign taxes to the extent such taxes
exceed Executive's U.S. taxes.
5. Continuation of Compensation During Disability.
(a) If Executive is unable to perform his services by
reason of total disability (as determined in accordance with
Subsection 5(b) below), Executive shall be entitled to all of
the compensation and benefits, as provided in Section 4 hereof
for one year from the date of such total disability. If such
total disability does not cease to exist by the end this one
year period, Executive and EuroGas may thereupon terminate this
Agreement, in accordance with Subsection 6(b).
(b) For purposes of this Agreement, determination of
whether Executive is or is not totally disabled shall be made
as follows:
(i) Executive's inability, physical or mental, for
whatever reason, to be able to perform his duties to the
Company shall be total disability; and
(ii) If any difference shall arise between the
Company and Executive as to whether he is totally
disabled, such difference shall be resolved as follows:
Executive shall be examined by a physician appointed by
the Company and a physician appointed by Executive. If
said two physicians shall disagree concerning whether
Executive is totally disabled, that question shall be
submitted to a third physician, who shall be selected by
such two physicians. The medical opinion of such third
physician, after examination of Executive and consultation
with such other two physicians, shall decide the question.
6. Termination of Agreement.
(a) Termination by EuroGas for Cause. EuroGas shall have
the right, without further obligation to Executive other than
for compensation previously accrued, to terminate this
Agreement for cause ("Cause") by showing that (i) Executive has
materially breached his obligations under Subsection 3(b)
hereof which breach has not been cured within 30 days after
notice thereof from EuroGas to the Executive; or (ii) Executive
has been convicted of fraud, embezzlement, theft, or dishonesty
or other criminal conduct against EuroGas, Executive has been
convicted of sexual harassment of an employee of EuroGas or a
supplier or vendor of EuroGas, or Executive has been grossly
negligent in the performance of his duties.
(b) Termination Upon Death or Disability of Executive.
This Agreement shall terminate immediately upon Executive's
death. If this Agreement is terminated as a result of
Executive's death, EuroGas shall continue to provide
Executive's estate with all of the compensation provided in
Section 4 until the first anniversary of such termination and
the benefits provided in Subsection 6(c)(B) below. This
Agreement may be terminated in accordance with Subsection 5(a)
if Executive becomes totally disabled, as defined in Subsection
5(b). If this Agreement is terminated because of Executive's
total disability, EuroGas shall have no obligation to provide
further compensation to the Executive except for compensation
previously accrued, provided that Executive shall receive the
benefits provided in Subsection 6(c)(B) below.
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(c) Termination by Executive for Cause, for Good Reason;
Termination by EuroGas for Any Other Reason. Executive shall
have the right to terminate this Agreement in the event of (i)
EuroGas' breach of any covenant or term of this Agreement, but
only if EuroGas fails to cure such breach within thirty (30)
days following the receipt of notice by Executive setting forth
the conditions giving rise to such breach; (ii) an assignment
to Executive of any duties inconsistent with, or a significant
change in the nature or scope of, Executive's authority or
duties from the authority and duties held by Executive as of
the date hereof and as increased from time to time, including
the removal, replacement, or non-election of Executive as a
member of the Board or nonappointment of Executive to the
Executive Committee; (iii) the failure by EuroGas to obtain
the assumption of the commitment to perform this Agreement by
any successor corporation; or (iv) upon a Change in Control (as
defined below) (any such grounds for termination by the
Executive being hereafter referred to as "Good Reason").
If this Agreement is terminated pursuant to this
Subsection 6(c), the Executive shall be entitled to receive all
compensation previously accrued and the following amounts and
benefits:
(A) the amount of base salary that would have been
paid to Executive pursuant to the provisions of this
Agreement for one year, such amounts to be payable at the
same and under the same terms and conditions as would have
been applicable had Executive's employment continued;
(B) effective as of the date of termination, (x)
immediate vesting and exercisability of, and termination
of any restrictions on sale or transfer (other than any
such restriction arising by operation of law) with respect
to each and every stock option, restricted stock award,
restricted stock unit award and other equity-based award
and performance award (each a "Compensatory Award") that
is outstanding as of a time immediately prior to the date
of termination, including, but not limited to, the option
referred to in Subsection 4(d) hereof, and (y) the
extension of the term during which each and every
Compensatory Award may be exercised by the Executive in
accordance with the 1996 Stock Option and Award Plan of
EuroGas which provides that after employment has been
terminated, Executive has three months to exercise an
option unless such termination results from death or
disability of Executive (and employee dies prior to or
within three months of termination) in which event, in the
case of disability, Executive shall have a one year period
following termination in which to exercise the option and
in case of death, the option must be exercised within six
months after the issuance of letters testamentary or
administration or the appointment of an administrator,
executor, or personal representative but not later than
one year after the date of termination of employment.
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The Executive shall also be entitled to the foregoing
compensation if EuroGas terminates or purports to terminate this
Agreement other than as expressly permitted pursuant to Subsections
6(a) and (b) hereof.
(d) "Change in Control" shall mean (i) the date of public
announcement that a person has become, without the approval of
the Company's Board of Directors, the beneficial owner of 20%
or more of the voting power of all securities of the Company
then outstanding; (ii) the date of the commencement of a tender
offer or tender exchange by any person, without the approval of
the Company's Board of Directors, if upon the consummation
thereof such person would be the beneficial owner of 20% or
more of the voting power of all securities of the Company then
outstanding; or (iii) the date on which individuals who
constituted the Board of Directors of the Company on the date
this Agreement was adopted cease for any reason to constitute a
majority thereof, provided that any person becoming a director
subsequent to such date whose election or nomination was
approved by at least three quarters of such incumbent Board of
Directors shall be considered as though such person were an
incumbent director.
7. Indemnification. EuroGas shall indemnify Executive and
hold Executive harmless from liability for acts or decisions made by
Executive while performing services for EuroGas to the greatest
extent permitted by applicable law and shall enter into an
indemnification agreement with Executive to that effect within a
reasonable time after the execution of this Agreement. EuroGas
shall use its best efforts to obtain coverage for Executive under
any insurance policy now in force or hereafter obtained during the
term of this Agreement insuring officers and directors of EuroGas
against such liability.
8. Notice. Any notice or request required or permitted to be
given hereunder shall be sufficient if in writing and delivered
personally, sent by facsimile transmission, or sent by registered
mail, return receipt requested, to the addresses hereinabove set
forth or to any other address designated by either of the parties
hereto by notice similarly given. Such notice shall be deemed to
have been given upon such personal delivery, facsimile transmission,
or mailing, as the case may be, to the addresses set forth below:
If to Executive, to: Xxxx X. Xxxxxx
c/o Xxx X. Xxxxxxxxx, Esq.
Nordlicht & Hand
Olympic Tower
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
With a copy to: Xxx X. Xxxxxxxxx, Esq.
Nordlicht & Hand
Olympic Tower
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Confirmation: (000) 000-0000
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If to EuroGas, to: Chairman of the Board of Directors
EuroGas, Inc.
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxx, Xxxx 00000
Fax: (000) 000-0000
Confirmation: (000) 000-0000
With a copy to: Xxxxx X. Xxxxxx, Esq.
Xxxxxx Xxxxxxxxxxx Xxxxxxxx
0000-000 Xxxx Xxxxx
Xxxx Xxxxxxxxx, X.X.
X0X XX0
Xxxxxx
Fax: (000) 000-0000
Confirmation: (000) 000-0000
9. Successors.
(a) This Agreement is personal to the Executive and
without the prior written consent of EuroGas shall not be
assignable by the Executive otherwise than by will or the laws
of descent and distribution. This Agreement shall inure to the
benefit of and be enforceable by the Executive's legal
representatives.
(b) This Agreement shall inure to the benefit of and be
binding upon EuroGas and its successors and assigns.
(c) EuroGas will require any successor (whether direct or
indirect, by purchase merger, consolidation, or otherwise) to
all or substantially all of the business and/or assets of
EuroGas to assume expressly and agree to perform this Agreement
in the same manner and to the same extent that EuroGas would be
required to perform it if no such succession had taken place.
As used in this Agreement, "EuroGas" shall mean EuroGas as
hereinabove defined and any successor to its business and/or
assets as aforesaid which assumes and agrees to perform this
Agreement by operation of law, or otherwise.
10. Attorneys' Fees. In the event that any action, suit,
arbitration, or other proceeding is instituted concerning or arising
out of this Agreement, the prevailing party shall be entitled to
recover all of such party's costs, including reasonable attorneys'
fees, incurred in each and every such action, suit, arbitration, or
other proceeding, including any and all appeals or petitions therefrom.
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11. Validity of Provisions and Severability. If any provision
of this Agreement is, or becomes, or is deemed invalid, illegal, or
unenforceable in any jurisdiction, such provision shall be deemed
amended to conform to the applicable jurisdiction, or if it cannot
be so amended without materially altering the intention of the
parties, it will be stricken. However, the validity, legality, and
enforceability of any such provisions shall not in any way be
effected or impaired thereby in any other jurisdiction and the
remainder of this Agreement shall remain in full force and effect.
12. Entire Agreement. This Agreement constitutes the entire
agreement and understanding between the parties pertaining to the
subject matter of this Agreement. This Agreement supersedes all
prior agreements, if any, any understandings, negotiations, and
discussions, whether oral or written. No supplement, modification,
waiver, or termination of this Agreement shall be binding unless
executed in writing by the party to be bound thereby.
13. Governing Law. This Agreement shall be governed by and
construed and interpreted in accordance with the laws of the state
of Utah.
14. Authority. Prior to, or simultaneous with, and as a
condition to the execution of this Agreement, EuroGas shall provide
Executive with a resolution of the Board of Directors of EuroGas
authorizing the execution, delivery and performance of this
Agreement on the terms set forth herein certified by the Secretary
of EuroGas.
15. Survival. The provisions of Subsection 3(b) and Sections
6 and 13 shall survive the termination of this Agreement.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, EuroGas has caused this Agreement to be
signed by its duly authorized officer and Executive has signed this
Agreement as of the date first above written.
EuroGas:
EUROGAS, INC.
By: /S/ 4/26/99
----------------------------
Name:
Title:
Executive:
/S/ 4/20/99
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Xxxx X. Xxxxxx
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