Exhibit 10.14
TERMINATION AGREEMENT
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TERMINATION AGREEMENT dated as of February 10, 2004, effective as of
September 1, 2003, between XXXXX XXXXX, (hereinafter the "Executive"), with an
address at 000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000, Xxxxx, Xxxxxxx 00000 and
XXXXXXXXX ENERGY CORPORATION, a Delaware corporation (the "Company"), having its
principal place of business at 0000 Xxxxx XxxxxXxxx Xxxxxxxxx, Xxxxx 000,
Xxxxxxxxx, Xxxxxxxx 00000.
RECITALS
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WHEREAS, Executive held the position of Chief Information Officer of the
Company in accordance with an Employment Agreement dated February 1, 2000 (the
"Employment Agreement").
WHEREAS, Executive and the Company agreed to terminate the Employment
Agreement on the basis herein provided as of September 1, 2003.
WHEREAS, the parties desire to memorialize their agreement with respect to
the subject matter hereof as set forth herein.
NOW, THEREFORE, upon the agreements and covenants set forth herein, the
parties hereto agree as follows:
1. Employment Termination.
(a) The parties acknowledge and agree that, effective at the close of
business on September 1, 2003, the Executive's employment with the Company as
its Chief Information Officer is hereby terminated. Accordingly, the Employment
Agreement is hereby terminated effective as of September 1, 2003.
(b) The parties hereby acknowledge that effective on September 1, 2003
the employee resigned as a director of the Company.
2. Payments; Conditions. For and in consideration of the Executive's
entering into this Termination Agreement, the Company agrees:
(a) To pay to Executive the sum of Fifteen Thousand Dollars ($15,000)
in one lump sum.
(b) To issue the employee two hundred eighty five thousand (285,000)
shares of common stock, $.001 par value per share (the "Shares") of the Company.
The Company shall deliver the certificates representing the Shares upon the
earlier of (i) the tenth (10th) day following the date the Company effectuates a
contemplated stock split of its common stock (in which case the number of Shares
shall be adjusted to give effect to the stock split). The foregoing
notwithstanding, the Company acknowledges that it has received full
consideration for the Shares on the date hereof, and the Shares shall be deemed
issued to the Employee on the date of termination (September 1, 2003) for the
purposes of determining the holding period under Rule 144 promulgated under the
Securities Act of 1933, as amended (the "Securities Act").
3. Resignation. By executing this Termination Agreement, the Executive
acknowledges he voluntarily resigned, effective September 1, 2003, from all
capacities and positions with the Company and its subsidiaries, including but
not limited to the office of Chief Information Officer of the Company and as a
director of the Company.
4. Representations of the Executive. The Executive represents, warrants,
and agrees with the Company as follows:
(a) The Executive has the power to enter into this Agreement and to
carry out his obligations hereunder. This Agreement constitutes the valid and
binding obligation of the Executive, and is enforceable in accordance with its
terms.
(b) Neither the execution and delivery of this Agreement, nor
compliance by the Executive with any of the provisions hereof, nor the
consummation of the transactions contemplated hereby, will:
(i) violate any judgment, order, injunction, decree or award
against, or binding upon, the Executive;
(ii) violate or otherwise breach the terms of any agreement or
understanding, written or oral, to which the Executive is a party or is
otherwise bound; or
(iii) violate any law or regulation of any jurisdiction relating
to the Executive.
(c) With respect to the issuance of the Shares, the Employee
understands and agrees that the Company is relying and may rely upon the
following representations, warranties and acknowledgments made by the Employee.
(i) Acquisition for Account. The Employee represents and warrants
that the Shares acquired by it are being acquired for its own account, for
investment purposes and not with a view to any distribution within the meaning
of the Securities Act. The Employee will not sell, assign, mortgage, pledge,
hypothecate, transfer or otherwise dispose of any of the Shares unless (A) a
registration statement under the Securities Act with respect thereto is in
effect and the prospectus included therein meets the requirements of Section 10
of the Securities Act, or (B) the Company has received a written opinion of its
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counsel that, after an investigation of the relevant facts, such counsel is of
the opinion that such proposed sale, assignment, mortgage, pledge,
hypothecation, transfer or disposition does not require registration under the
Securities Act or any state securities law.
(ii) No Registration. The Employee understands that the issuance
of the Shares is not being registered under the Securities Act and the Shares
must be held indefinitely unless they are subsequently registered thereunder or
an exemption from such registration is available.
(iii) Employee Status. The Employee represents and warrants
further that (A)it is either an "accredited investor," as such term is defined
in Rule 501(a) promulgated under the Securities Act, or, either alone or with
its purchaser representative, has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of the
acquisition of the Shares; (B) it is able to bear the economic risks of an
investment in the Shares, including, without limitation, the risk of the loss of
part or all of its investment and the inability to sell or transfer the Shares
for an indefinite period of time; (C) it has adequate financial means of
providing for current needs and contingencies and has no need for liquidity in
its investment in the Shares; and (D) it does not have an overall commitment to
investments which are not readily marketable that is excessive in proportion to
net worth and an investment in the Shares will not cause such overall commitment
to become excessive.
(iv) Review of Material. The Employee has reviewed the Company's
reports, proxy and information statements and registration statements filed via
the Xxxxx System with the Securities and Exchange Commission since January 1,
2003, and has been afforded the opportunity to obtain such information regarding
the Company as it has reasonably requested to evaluate the merits and risks of
the Employee's investment in the Shares. No oral or written representations have
been made or oral information furnished to the Employee or his advisers in
connection with the investment in the Shares.
(v) Legend. The Employee acknowledges that the a restrictive
legend will be placed on any instrument, certificate or other document
evidencing the Shares in, or substantially in, the following form:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933. These securities
have been acquired for investment and not for distribution or
resale. They may not be sold, assigned, mortgaged, pledged,
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hypothecated or otherwise transferred or disposed of without an
effective registration statement for such securities under the
Securities Act of 1933 or an opinion of counsel to the Company
that registration is not required under such Act."
5. Representations of the Company. The Company represents, warrants, and
agrees with the Executive as follows:
(a) The Company has the requisite corporate power to enter into this
Agreement and to carry out its obligations hereunder. The execution and delivery
of this Agreement and the consummation of the transactions contemplated hereby
have been duly authorized by the Board of Directors of the Company, and no other
corporate proceedings are necessary to authorize the execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby.
This Agreement constitutes the valid and binding obligation of the Company, and
is enforceable in accordance with its terms.
(b) Neither the execution and delivery of this Agreement nor compliance
by the Company with any of the provisions hereof, nor the consummation of the
transactions contemplated hereby, will:
(i) violate the Certificate of Incorporation or By-Laws of the
Company;
(ii) violate any judgment, order, injunction, decree or award
against, or binding upon, the Company;
(iii) violate or otherwise breach the terms of any agreement or
understanding, written or oral, to which the Company is a party or is otherwise
bound; or
(iv) violate any law or regulation of any jurisdiction relating to
the Company.
(c) Upon issuance of the Shares, and delivery of certificates to the
Employee therefor, the Shares shall constitute duly authorized, validly issued,
fully paid and non-assessable shares of common stock of the Company.
6. General Release. The Employee herein releases and discharges the
Company, the Company's heirs, executors, administrators, successors and assigns
from all actions, causes of action, suits, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialities, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments, extents,
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executions, claims, and demands whatsoever, in law, admiralty or equity, which
against the Company, the Employee, the Employee's heirs, executors,
administrators, successors and assigns ever had, now have or hereafter can,
shall or may, have for, upon, or by reason of any matter, cause or thing related
whatsoever from the beginning of the world to the day of the date of this
release, under the Employment Agreement. This release shall not release or
discharge any of the Company's duties, obligations or agreements under this
Agreement.
7. Choice of Law and Venue. The parties agree that this Termination
Agreement is made and entered into in Englewood, Colorado and shall be governed
by and construed in accordance with the laws of the State of Colorado, and that
any litigation, special proceeding or other proceeding as between the parties
that may be brought, or arise out of, in connection with or by reason of this
Termination Agreement shall be brought in the applicable state court in and for
Arapahoe County, Colorado which Courts shall be the exclusive courts or
jurisdiction and venue.
8. Entire Agreement. This Termination Agreement contains the full and
complete understanding and agreement of the parties hereto with respect to the
subject matter contained herein and supersedes all prior or contemporaneous
written or oral understandings or agreements with respect to the subject matter
hereof. No modification of this Termination Agreement shall be binding unless
made in writing and signed by the party sought to be charged.
9. Binding Effect. This Termination Agreement shall be binding upon, and
shall inure to the benefit of, the parties hereto and their respective
successors, assigns and legal representatives.
10. Waiver; Severability. The waiver by either party of a breach of any
provision of this Termination Agreement shall not operate or be construed as a
waiver of any subsequent breach. If any provision of this Termination Agreement,
or part thereof, shall be held to be invalid or unenforceable, such invalidity
or unenforceability shall attach only to such provision and not in any way
affect or render invalid or unenforceable any other provisions of this
Termination Agreement, and this Termination Agreement shall be carried out as if
such invalid or unenforceable provision, or part thereof, had been reformed, and
any court of competent jurisdiction is authorized to so reform such invalid or
unenforceable provision, so that it would be valid, legal and enforceable to the
fullest extent permitted by applicable law.
11. Notices; Deliveries. Any notice, delivery or other communication
required or permitted hereunder shall be sufficiently given if delivered by hand
or sent by certified mail, return receipt requested, facsimile transmission,
overnight mail or nationally recognized overnight courier, addressed as to each
party at its respective address set forth above or such other address as shall
be furnished in writing by either party, and any notice, delivery or
communication given pursuant to the provisions hereof shall be deemed to have
been given as of the date delivered or so mailed or transmitted.
12. Counterparts; Headings; Facsimile Signatures. This Termination
Agreement may be executed in counterparts, each of which shall be an original,
but all of which taken together shall constitute one agreement. The headings
contained in this Termination Agreement are solely for the convenience of the
parties, and are not intended to and do not limit, construe or modify any of the
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terms and conditions hereof. Facsimile signatures hereon shall be deemed to be
original signatures.
[Remainder of page intentionally left blank. Signatures are on the
following page.]
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IN WITNESS WHEREOF, the parties have executed this Termination Agreement as
of the day and year first above written.
XXXXXXXXX ENERGY CORPORATION
By: /s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx, Chief Executive Officer
By: /s/ Xxxxx Xxxxx
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XXXXX XXXXX
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