exv10w23



 





Exhibit 10.23




EMPLOYMENT AGREEMENT




     This EMPLOYMENT AGREEMENT (the “Agreement”) is entered into on June 1, 2007 (“the
Commencement Date”) by and between Synthesis Energy Systems, Inc., a Delaware corporation
(the “Corporation”), and David J.H. Nicoll, an individual residing at 11 South Crescent,
Maplewood, New Jersey (the “Executive”) under the terms and conditions set forth in this
Agreement.



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
Senior Vice President of Engineering, and the Executive, in such capacities, agrees to provide
services to the Corporation for the period beginning on the Commencement Date and ending on May 31,
2010 (the “Employment Period”).



     2. Performance of Duties. The Executive agrees that during the Employment Period,
while he is employed by the Corporation, he shall devote his full time, energies and talents
exclusively to serving in the capacity of the Corporation’s senior engineering and technology
manager, and in the best interests of the Corporation, and to perform the duties assigned to him by
the Chief Executive Officer of the Corporation faithfully, efficiently and in a professional
manner. The Executive shall not, without prior written consent from the Chief Executive Officer
(which consent shall not be unreasonably withheld):



          (a) 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




          (b) 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
(i) disclose to the Board of Directors of the Corporation (the “Board”) any 5% ownership
interest in any enterprise, (ii) 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 (iii) 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.




 









 





     3. Compensation. Subject to the terms and conditions of this Employment 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 $16,666.66 per month, 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) The Executive shall be entitled to an annual performance-based bonus up to 50% of the
annual base salary set forth in paragraph 3(a) as determined by the Chief Executive Officer.




          (c) The Executive shall be entitled during the Employment Period, upon satisfaction of all
eligibility requirements, if any, to participate in all health, dental, disability, life insurance
and other benefit programs now or hereafter established by the Corporation which cover
substantially all other of the Corporation’s employees located in the United States and shall
receive such other benefits as may be approved from time to time by the Corporation.




          (d) The Executive shall be entitled to an annual paid vacation equal to four (4) 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.




          (e) 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.





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          (f) The Executive shall be entitled to reimbursement of actual moving
expenses up to and including $50,000 (exclusive of broker’s fees). The Corporation will
advance $30,000 of such moving expenses (documentation to be provided as soon as the move is
complete). The balance of the expenses will be reimbursed upon presentment of the appropriate
documentation.




          (g) The Executive shall be entitled to participate in the Corporation’s 2005 Incentive 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
100,000 shares of the Corporation’s capital stock at an exercise price equal to $10.58 per share,
which options shall vest as follows: 25,000 shares shall vest on the execution of this agreement
and the remainder of such options shall vest on the following three (3) annual anniversary dates of
the Commencement Date in equal installments of 25,000 shares. Additionally, the Executive is
entitled to receive the following option grants:





	 	1)	 	33,333 options (at an exercise price as of the date of the grant) upon the
successful operation of the Hai Hua gasification facility. Successful operation to be
defined as the commercial operation of the plant as defined by the CEO; and
	 
	 	2)	 	33,333 options (at an exercise price as of the date of the grant) when the
Corporation reaches financial close of the second gasification project after Hai Hua,
such options will vest 25% on each of the next four anniversary dates of the grant; and
	 
	 	3)	 	33,333 options (at an exercise price as of the date of the grant) when the
Executive completes at least six of the following eight engineering objectives, such
options will vest 25% on each of the next four anniversary dates of the grant




a. Delivery of the basic technology manual

b. Delivery of the cost estimation guide

c. Hiring of engineering staff

d. Delivery of the processing model in Hysys/Aspen

e. Delivery of the PDP guideline document

f. Delivery of feasibility study guideline

g. Delivery of the Pre-FEED package guideline

h. Delivery of the FEED package guideline



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.




     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 his and will continue to bring
his into close contact with confidential information of the Corporation and its customers; and
(iii) the agreements and covenants contained in this



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paragraph 4 are essential to protect the business interests of the Corporation and that the
Corporation will not enter into the Employment 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
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 (x) the eighteen (18) month anniversary if the Executive is
terminated for cause or voluntarily resigns, or (y) on the first (1st) anniversary if
the Executive is terminated without cause or resigns for good reason, of the date on which the
Executive’s employment with the Corporation is terminated (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, coal gasification and
syngas production. As of the date hereof, the Business of


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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 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. 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



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          (a) 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 (i) immediately upon notice of such resignation, or (ii) or such period that is less than
the 60-day period set forth in the Executive’s notice of 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.




          (b) Termination for Cause. The Executive may be terminated for cause. 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);




          (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.



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          (b) 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.




          (c) 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. The Executive’s estate, however, shall be entitled to retain all shares of stock that have
vested as of such date.




     6. 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.



     7. Successors and Assignment. 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 his 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 his 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:



David J.H. Nicoll

11 South Crescent

Maplewood, New Jersey 07040




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          (b) to the Corporation addressed as follows:



Synthesis Energy Holdings, Inc.

6330 West Loop South, Suite 300

Houston, Texas 77401

Attn: Timothy E. Vail

Tel: (713) 898 — 0444




     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. Harris County district courts shall
have jurisdiction with regard to all matters relating to the interpretation and enforcement of this
Agreement.



     13. WAIVER OF JURY TRIAL AND COSTS. THE EXECUTIVE AND THE CORPORATION EXPRESSLY WAIVE
ANY RIGHT EITHER MAY HAVE TO A JURY TRIAL CONCERNING ANY CIVIL ACTION THAT MAY ARISE FROM THIS
AGREEMENT, OR THE RELATIONSHIP OF THE PARTIES HERETO AND 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 Employment Agreement
as of the day and year first above written.



	 	 	 	 	 
	 	 	 
	 	                                               /s/ David J.H. Nicoll
 	 
	 	David J.H. Nicoll 	 
	 	 	 
	 



	 	 	 	 	 
	 	SYNTHESIS ENERGY SYSTEMS, INC.

 	 
	 	/s/ Timothy E. Vail
 	 
	 	Timothy E. Vail 	 
	 	President & CEO 	 
	 




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