EMPLOYMENT AGREEMENT
EXHIBIT 10.1
This
Employment Agreement (the "Agreement") is made and
entered into as of February ____ 2020, by and between Xxxxxxxx
Xxxxxxxx III (Xxxxxxxx") and Amazing
Energy Oil and Gas, Co. (the "Company").
WHEREAS, the Company desires to engage
Xxxxxxxx on the terms and conditions set forth herein;
and
WHEREAS, Xxxxxxxx desires to be engaged
by the Company on such terms and conditions.
NOW, THEREFORE, in consideration of the
mutual covenants, promises and obligations set forth herein, the
parties agree as follows:
1. Term. Xxxxxxxx'x engagement
hereunder (the “Engagement”) shall be effective as
of February ___, 2020 (the "Effective Date") and
shall remain effective for a period of six (6) months from that
date (the “Engagement”). This Agreement shall
automatically renew every six (6) months unless either party to the
other delivers written notice of termination at least thirty (30)
days prior to the end of the then current agreement. The period of
Xxxxxxxx’x Engagement with the Company hereunder is
hereinafter referred to as the "Term."
2. Position and
Duties.
2.1 Position. During the Term,
Xxxxxxxx shall provide services to the Company consistent with that
of a chief financial officer (“CFO”); reporting to the
CEO and board of directors (the “Board”). In such role,
Xxxxxxxx shall have such duties, authority and responsibility as
shall be determined from time to time by the CEO and the Board,
which duties, authority and responsibility are consistent with
Xxxxxxxx'x position.
2.2 Duties. During the Term,
Xxxxxxxx shall devote sufficient business time and attention to the
performance of Xxxxxxxx'x duties hereunder.
3. Place of Performance. The
principal place of Xxxxxxxx'x Engagement shall be located in the
Austin, Texas area, provided that Xxxxxxxx will travel as needed on
Company business as appropriate or necessary during the Term. Any
expense incurred by Xxxxxxxx for travel required on behalf of the
Company shall be reimbursed within fourteen (14) days of an expense
report submission by the Xxxxxxxx.
4. Compensation.
4.1 Fees. The Company shall pay
Xxxxxxxx a fee of seven thousand five hundred and no/100 dollars
($7,500.00) per month in periodic installments in accordance with
the Company's customary practices, but no less frequently than
monthly. Notwithstanding the foregoing, Xxxxxxxx’x monthly
compensation may be increased at the discretion of the
Company.
4.2 Equity. In consideration of Xxxxxxxx entering into this
Agreement and agreeing to the non-solicitation and non-compete
provisions contained herein, the Company will issue two hundred
thousand (200,000) shares of AMAZ restricted common stock within 10
days of signing this Agreement. These shares will be deemed earned,
fully paid, and non-forfeitable when issued.
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5. Termination of
Agreement.
5.1 Termination. The Engagement may
be terminated by either the Company or Xxxxxxxx at any time and for
any reason upon 30-days’ written notice by the terminating
party to the other party. Upon termination of Xxxxxxxx'x Engagement
during the Term, Xxxxxxxx shall be entitled to receive (i) any
accrued but unpaid compensation which shall be paid on the pay date
immediately following the Termination Date (as defined below) in
accordance with the Company's customary procedures; (ii)
reimbursement for unreimbursed business expenses properly incurred
by Xxxxxxxx, which shall be subject to and paid in accordance with
the Company's expense reimbursement policy; and (iii) such Xxxxxxxx
benefits, if any, as to which Xxxxxxxx may be entitled as of the
Termination Date (collectively, the "Accrued
Amounts").
5.2 Death or Disability.
(a) Xxxxxxxx'x
Engagement hereunder shall terminate automatically upon Xxxxxxxx'x
death during the Term, and the Company may terminate Xxxxxxxx'x
Engagement on account of Xxxxxxxx'x Disability.
(b) If Xxxxxxxx'x
Engagement is terminated during the Term on account of Xxxxxxxx'x
death or Disability, Xxxxxxxx (or Xxxxxxxx'x estate and/or
beneficiaries, as the case may be) shall be entitled to receive the
Accrued Amounts. Notwithstanding any other provision contained
herein, all payments made in connection with Xxxxxxxx'x Disability
shall be provided in a manner that is consistent with federal and
state law.
(c) For purposes of
this Agreement, “Disability” shall mean Xxxxxxxx'x
inability, due to physical or mental incapacity, to substantially
perform Xxxxxxxx’x duties and responsibilities under this
Agreement for one hundred eighty (180) days out of any three
hundred sixty-five (365) day period or forty-five (45) consecutive
days. Any question as to the existence of Xxxxxxxx'x Disability as
to which Xxxxxxxx and the Company cannot agree shall be determined
in writing by a qualified independent physician mutually acceptable
to Xxxxxxxx and the Company.
5.3 Resignation of All Other
Positions. Upon termination of Xxxxxxxx'x Engagement
hereunder, Xxxxxxxx agrees to resign, effective on the termination
date, from all positions that Xxxxxxxx holds as an officer of the
Company or any of its affiliates.
6. Cooperation. The parties agree
that certain matters in which Xxxxxxxx will be involved during the
Term may necessitate Xxxxxxxx'x cooperation in the future.
Accordingly, following the termination of Xxxxxxxx'x Engagement for
any reason, to the extent reasonably requested by the Board,
Xxxxxxxx shall cooperate with the Company in connection with
matters arising out of Xxxxxxxx'x service to the Company; provided
that, the Company shall make reasonable efforts to minimize
disruption of Xxxxxxxx'x other activities. The Company shall
reimburse Xxxxxxxx for reasonable expenses incurred in connection
with such cooperation and, to the extent that Xxxxxxxx is required
to spend substantial time on such matters, the Company shall
compensate Xxxxxxxx at an hourly rate based on Xxxxxxxx'x monthly
fee on the termination date.
7. Confidential Information.
Xxxxxxxx understands and acknowledges that during the Term,
Xxxxxxxx will have access to and learn about Confidential
Information, as defined below.
7.1 Confidential Information
Defined.
(a) Definition.
For
purposes of this Agreement, "Confidential
Information" includes, but is not limited to, all
information not generally known to the public, in spoken, printed,
electronic or any other form or medium, relating directly or
indirectly to: business processes, practices, methods, policies,
plans, publications, documents, research, operations, services,
strategies, techniques, agreements, contracts, terms of agreements,
transactions, potential transactions, negotiations, pending
negotiations, know-how, trade secrets, computer programs, computer
software, applications, operating systems, software design, web
design, work-in-process, databases, manuals, records, articles,
systems, material, sources of material, supplier information,
vendor information, financial information, results, accounting
information, accounting records, legal information, marketing
information, advertising information, pricing information, credit
information, design information, payroll information, staffing
information, personnel information, Xxxxxxxx lists, supplier lists,
vendor lists, developments, reports, internal controls, security
procedures, graphics, drawings, sketches, market studies, sales
information, revenue, costs, formulae, notes, communications,
algorithms, product plans, designs, styles, models, ideas,
audiovisual programs, inventions, unpublished patent applications,
original works of authorship, discoveries, experimental processes,
experimental results, specifications, customer information,
customer lists, client information, client lists, manufacturing
information, factory lists, distributor lists, and buyer lists of
the Company or its businesses or any existing or prospective
customer, supplier, investor or other associated third party, or of
any other person or entity that has entrusted information to the
Company in confidence.
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Xxxxxxxx
understands that the above list is not exhaustive, and that
Confidential Information also includes other information that is
marked or otherwise identified as confidential or proprietary, or
that would otherwise appear to a reasonable person to be
confidential or proprietary in the context and circumstances in
which the information is known or used.
Xxxxxxxx
understands and agrees that Confidential Information includes
information developed by Xxxxxxxx in the course of Xxxxxxxx’x
Engagement by the Company as if the Company furnished the same
Confidential Information to Xxxxxxxx in the first instance.
Confidential Information shall not include information that is
generally available to and known by the public at the time of
disclosure to Xxxxxxxx; provided that, such disclosure is through
no direct or indirect fault of Xxxxxxxx or person(s) acting on
Xxxxxxxx'x behalf.
Xxxxxxxx will
promptly make a full written disclosure to Company, will hold in
trust for the sole right and benefit of Company, and hereby assign
to Company, or its designee, all of Xxxxxxxx’x right, title,
and interest (including all related intellectual property rights
and the right to xxx and collect payment for past, present, and
future infringement) in all inventions that Xxxxxxxx creates during
Xxxxxxxx’x Engagement with the Company (including during
Xxxxxxxx’x off-work hours) (“Company Inventions”). In addition,
all original works of authorship that are made by Xxxxxxxx (solely
or jointly with others) within the scope of and during the period
of Xxxxxxxx’x Engagement with Company and that are
protectable by copyright are “works made for hire,” as
that term is defined in the United States Copyright Act, and in
accordance, Company will be considered the author of these works.
Xxxxxxxx agrees that this assignment includes present conveyance to
Company of ownership of Inventions that are not yet in
existence.
“Inventions” means inventions,
original works of authorship, developments, concepts, improvements,
designs, discoveries, ideas, know-how, trademarks, and trade
secrets, whether or not patentable or registerable under copyright
or similar laws, which I may solely or jointly author, conceive,
develop, or reduce to practice.
(b) Company Creation and Use of
Confidential Information.
Xxxxxxxx
understands and acknowledges that the Company has invested, and
continues to invest, substantial time, money and specialized
knowledge into developing its resources, creating a customer base,
generating customer and potential customer lists, training its
consultants, and improving its business. Xxxxxxxx understands and
acknowledges that as a result of these efforts, the Company has
created, and continues to use and create Confidential Information.
This Confidential Information provides the Company with a
competitive advantage over others in the marketplace.
(c) Disclosure and Use
Restrictions.
Xxxxxxxx agrees and
covenants: (i) to treat all Confidential Information as strictly
confidential; (ii) not to directly or indirectly disclose, publish,
communicate or make available Confidential Information, or allow it
to be disclosed, published, communicated or made available, in
whole or part, to any entity or person whatsoever (including other
consultants of the Company) not having a need to know and authority
to know and use the Confidential Information in connection with the
business of the Company and, in any event, not to anyone outside of
the direct employ of the Company except as required in the
performance of Xxxxxxxx'x authorized Engagement duties with the
Company or with the prior consent of Board in each instance (and
then, such disclosure shall be made only within the limits and to
the extent of such duties or consent); and (iii) not to access or
use any Confidential Information and not to copy any documents,
records, files, media or other resources containing any
Confidential Information, or remove any such documents, records,
files, media or other resources from the premises or control of the
Company, except as required in the performance of Xxxxxxxx'x
authorized Engagement duties with the Company or with the prior
consent of Board (and then, such disclosure shall be made only
within the limits and to the extent of such duties or consent).
Nothing herein shall be construed to prevent disclosure of
Confidential Information as may be required by applicable law or
regulation, or pursuant to the valid order of a court of competent
jurisdiction or an authorized government agency, provided that the
disclosure does not exceed the extent of disclosure required by
such law, regulation or order. Xxxxxxxx shall promptly provide
written notice of any such order to the Board.
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Xxxxxxxx
understands and acknowledges that Xxxxxxxx’x obligations
under this Agreement with regard to any particular Confidential
Information shall commence immediately upon Xxxxxxxx first having
access to such Confidential Information (whether before or after
Xxxxxxxx begins the Engagement with the Company) and shall continue
during and after Xxxxxxxx’x Engagement by the Company until
such time as such Confidential Information has become public
knowledge other than as a result of Xxxxxxxx'x breach of this
Agreement or breach by those acting in concert with Xxxxxxxx or on
Xxxxxxxx'x behalf.
8.1 Acknowledgment. Xxxxxxxx
understands that the nature of Xxxxxxxx'x position gives Xxxxxxxx
access to and knowledge of Confidential Information and places
Xxxxxxxx in a position of trust and confidence with the Company.
Xxxxxxxx understands and acknowledges that the physical,
intellectual, or artistic services Xxxxxxxx provides to the Company
are unique, special, or extraordinary because they involve the
unique services that Xxxxxxxx has represented according to this
Agreement.
Xxxxxxxx further
understands and acknowledges that the Company's ability to reserve
these for the exclusive knowledge and use of the Company is of
great competitive importance and commercial value to the Company,
and that improper use or disclosure by Xxxxxxxx is likely to result
in unfair or unlawful competitive activity.
8.2 Non-competition. Because of the
Company's legitimate business interest as described herein and the
good and valuable consideration offered to Xxxxxxxx, during the
Restrictions Period, Xxxxxxxx agrees and covenants not to engage in
Prohibited Activity.
For
purposes of this Section
8, "Prohibited Activity" is
any activity in which Xxxxxxxx, acting as an employee, consultant,
employer, owner, operator, manager, advisor, agent, partner,
director, stockholder, officer, volunteer, intern or any other
similar capacity, discloses or makes available trade secrets,
proprietary information, or Confidential Information to any
individual, partnership, joint venture, corporate or other entity
other than the Company engaged in the same or similar business as
the Company in any geographic area in which the Company is engaged
in business or is actively contemplating engaging in business. For
purposes of this Section
8, "Restrictions Period" is
one year after Xxxxxxxx is no longer Engaged by the Company or any
successor to the Company (regardless of any reason of termination
of Engagement, including no reason, and whether Engagement is
terminated at the option of Xxxxxxxx or the Company).
8.3 Non-solicitation of Employees.
Xxxxxxxx agrees and covenants not to directly or indirectly
solicit, hire, recruit, attempt to hire or recruit, or induce the
termination of employment of any employee of the Company, or induce
the termination of any contracted relationship between the Company
and any other Xxxxxxxx or agent of the Company, during the
Restrictions Period. Notwithstanding the foregoing, nothing herein
shall prevent Xxxxxxxx, on Xxxxxxxx’x (or an
affiliate’s) behalf, from hiring (i) any employee who is a
family member, including but not limited to, a child or spouse or
(ii) any former employee of the Company if such employee has ceased
employment with the Company for at least two (2)
years.
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8.4 Non-solicitation of Customers.
Xxxxxxxx understands and acknowledges that because of Xxxxxxxx'x
experience with and relationship to the Company, Xxxxxxxx will have
access to and learn about much or all of the Company's customer
information. "Customer Information"
includes, but is not limited to, names, phone numbers, addresses,
e-mail addresses, order history, order preferences, chain of
command, pricing information and other information identifying
facts and circumstances specific to the customer and relevant to
sales or services of the Company. Xxxxxxxx understands and
acknowledges that loss of this customer relationship and/or
goodwill will cause significant and irreparable harm. Xxxxxxxx
agrees and covenants, during the Restrictions Period, not to
directly or indirectly solicit, contact (including but not limited
to e-mail, regular mail, express mail, telephone, fax, and instant
message), attempt to contact or meet with the Company's current,
former or prospective customers for purposes of offering or
accepting goods or services which are similar to or competitive
with those offered by the Company.
9. Non-disparagement. The Company
and Xxxxxxxx mutually agree and covenant that each will not at any
time make, publish or communicate to any person or entity or in any
public forum any defamatory or disparaging remarks, comments or
statements concerning the other party or its businesses, or any of
its consultants, officers, and existing customers, suppliers and,
investors, except for comments made by the Company or Xxxxxxxx to
their attorneys and financial advisors for the purposes of seeking
professional advice.
10. Acknowledgement. Xxxxxxxx
acknowledges and agrees that the services to be rendered by
Xxxxxxxx to the Company are of a special and unique character; that
Xxxxxxxx will obtain knowledge and skill relevant to the Company's
industry, methods of doing business and marketing strategies by
virtue of Xxxxxxxx'x Engagement; and that the restrictive covenants
and other terms and conditions of this Agreement are reasonable and
reasonably necessary to protect the legitimate business interest of
the Company.
Xxxxxxxx further
acknowledges that the amount of Xxxxxxxx’x compensation
reflects, in part, Xxxxxxxx’x obligations and the Company's
rights under Section
7 and Section 8 of this Agreement; that Xxxxxxxx has
no expectation of any additional compensation, royalties or other
payment of any kind not otherwise referenced herein in connection
herewith; that Xxxxxxxx will not be subject to undue hardship by
reason of Xxxxxxxx’x full compliance with the terms and
conditions of Section
7 and Section 8 of this Agreement or the Company's
enforcement thereof.
11. Mediation. Any dispute,
controversy or claim arising out of or related to this Agreement or
any breach of this Agreement shall be submitted to non-binding
mediation prior to either party filing a lawsuit to enforce its
rights pursuant to this Agreement, except, that either party may
seek emergency protection for an immediate violation of this
Agreement to the extent such protection is necessary to prevent
irreparable harm. Mediator costs and fees shall be borne equally by
the parties. However, any legal expenses related to the preparation
and attendance at mediation shall be the sole responsibility of the
party incurring such expenses.
12. Governing Law: Jurisdiction and
Venue. This Agreement, for all purposes, shall be construed
in accordance with the laws of Texas without regard to conflicts of
law principles. Any action or proceeding by either of the parties
to enforce this Agreement shall be brought only in a state or
federal court located in the state of Texas, county of Collin. The
parties hereby irrevocably submit to the exclusive jurisdiction of
such courts and waive the defense of inconvenient forum to the
maintenance of any such action or proceeding in such
venue.
13. Entire Agreement. Unless
specifically provided herein, this Agreement contains all of the
understandings and representations between Xxxxxxxx and the Company
pertaining to the subject matter hereof and supersedes all prior
and contemporaneous understandings, agreements, representations and
warranties, both written and oral, with respect to such subject
matter. The parties mutually agree that the Agreement can be
specifically enforced in court and can be cited as evidence in
legal proceedings alleging breach of the Agreement.
14. Modification and Waiver. No
provision of this Agreement may be amended or modified unless such
amendment or modification is agreed to in writing and signed by
Xxxxxxxx and by an officer authorized by the Board of the Company.
No waiver by either of the parties of any breach by the other party
hereto of any condition or provision of this Agreement to be
performed by the other party hereto shall be deemed a waiver of any
similar or dissimilar provision or condition at the same or any
prior or subsequent time, nor shall the failure of or delay by
either of the parties in exercising any right, power or privilege
hereunder operate as a waiver thereof to preclude any other or
further exercise thereof or the exercise of any other such right,
power or privilege.
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15. Severability. Should any
provision of this Agreement be held by a court of competent
jurisdiction to be enforceable only if modified, or if any portion
of this Agreement shall be held as unenforceable and thus stricken,
such holding shall not affect the validity of the remainder of this
Agreement, the balance of which shall continue to be binding upon
the parties with any such modification to become a part hereof and
treated as though originally set forth in this
Agreement.
16. Captions. Captions and headings
of the sections and paragraphs of this Agreement are intended
solely for convenience and no provision of this Agreement is to be
construed by reference to the caption or heading of any section or
paragraph.
17. Counterparts. This Agreement
may be executed in separate counterparts, each of which shall be
deemed an original, but all of which taken together shall
constitute one and the same instrument.
18. Tolling. Should Xxxxxxxx
violate any of the terms of the restrictive covenant obligations
articulated herein, the obligation at issue will run from the first
date on which Xxxxxxxx ceases to be in violation of such
obligation.
19. Successors and Assigns. This
Agreement is personal to Xxxxxxxx and shall not be assigned by
Xxxxxxxx. Any purported assignment by Xxxxxxxx shall be null and
void from the initial date of the purported assignment. The Company
may assign this Agreement to any successor or assign (whether
direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business or assets of
the Company. This Agreement shall inure to the benefit of the
Company and permitted successors and assigns.
20. Notice. Notices and all other
communications provided for in this Agreement shall be in writing
and shall be delivered personally or sent by registered or
certified mail, return receipt requested, or by overnight carrier
to the parties at the addresses set forth below (or such other
addresses as specified by the parties by like notice):
If to the Company:
Amazing
Energy Oil and Gas, Co.
0000
Xxxx Xxxxx Xxxxxxx
Xxxxx
0000
Xxxxx,
XX 00000
Attn:
Will XxXxxxxx III,
CEO
If to Xxxxxxxx:
X.X Xxx
000000
Xxxxxx
Xx 00000
21. Representations of Xxxxxxxx.
Xxxxxxxx represents and warrants to the Company that:
21.1 Xxxxxxxx'x
acceptance of Xxxxxxxx’x role with the Company and the
performance of Xxxxxxxx’x duties hereunder will not conflict
with or result in a violation of, a breach of, or a default under
any contract, agreement or understanding to which Xxxxxxxx is a
party or is otherwise bound.
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21.2 Xxxxxxxx'x
acceptance of Xxxxxxxx’x role with the Company and the
performance of Xxxxxxxx’x duties hereunder will not violate
any non-solicitation, non-competition or other similar covenant or
agreement of a prior employer.
22. Withholding. The Company shall
have the right to withhold from any amount payable hereunder any
Federal, state and local taxes in order for the Company to satisfy
any withholding tax obligation it may have under any applicable law
or regulation.
23. Survival. Upon the expiration
or other termination of this Agreement, the respective rights and
obligations of the parties hereto shall survive such expiration or
other termination to the extent necessary to carry out the
intentions of the parties under this Agreement.
24. Acknowledgment of Full
Understanding. XXXXXXXX ACKNOWLEDGES AND AGREES THAT
XXXXXXXX HAS FULLY READ, UNDERSTANDS AND VOLUNTARILY ENTERS INTO
THIS AGREEMENT. XXXXXXXX ACKNOWLEDGES AND AGREES THAT XXXXXXXX HAS
HAD AN OPPORTUNITY TO ASK QUESTIONS AND CONSULT WITH AN ATTORNEY OF
XXXXXXXX’X CHOICE BEFORE SIGNING THIS AGREEMENT.
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
|
XXXXXXXX
XXXXXXXX III
|
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COMPANY
By:
|
|
|
|
Amazing
Energy Oil and Gas, Co.
Name:
Xxxxxxx XxXxxxxx III
Title:
President/CEO
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