EMPLOYMENT AGREEMENT
EXHIBIT 10.17
EMPLOYMENT
AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement"), dated and
effective as
of November 1,
2018 (the
"Effective Date"),
by and between Amazing Energy
Oil and
Gas, Co., a Nevada
corporation with principal executive offices at 0000 Xxxx Xxxxx
Xxxxxxx, Xxxxx
0000, Xxxxx XX
00000 (the "Company"),
and Xxxxx X.
Xxxxx, an
individual whose address is
0000 Xxxxxxxxx Xxxxx, Xxxxxx,
XX 00000 (the
"Employee") (each
of which a "Party"
or, collectively, the
"Parties").
W I T
N E S
S E T H:
WHEREAS, the Company desires to employ
Employee for management
and executive services
as Chief Operating Officer,
and Employee desires to serve the
Company in that capacity upon the terms and subject to the
conditions contained
in
this Agreement
NOW,
THEREFORE, in
consideration of the
mutual
covenants and agreements herein
contained, the
Parties hereto
hereby agree as
follows:
1.
Employment.
(a) Services.
Upon effective date, Employee
will be employed by the Company
as the Chief Operating Officer to
provide services related
to such office. Employee will
report solely to the Company's Chief Executive
Officer. Employee agrees to perform such
Services faithfully,
to devote a significant portion of
his working
time, attention and energies to the business of the
Company, and while remaining employed,
to not engage in any other business activity that directly
conflicts with
his duties and
obligations to the Company. At the
commencement of
the Term, Employee shall be made an employee of
the Company and shall
be and remain employed by
the Company.
(b) Acceptance.
At the commencement of the Term, Employee hereby
accepts such employment
and agrees to render the Services.
(c) Inependent
Investment Activities Notwithstanding
any provision to
the contrary herein,
Employee shall be free
to engage in any
independent investment activity(ies), provided such
independent investment activity(ies) are not in
conflict with nor
do they interfere with
his duties and obligations to
the Company. To the extent
that Employee has
any prospective investment or other opportunity in the field of operations of the Company, then
Employee shall first notify the
Company and shall present such
opportunity to the Company. The Company,
acting through
its Board of Directors,
shall have fifteen (15) days to accept
or reject such opportunity. If
the Company elects not to
proceed with such opportunity after the
fifteen (15)
day period,
then Employee shall be free to pursue such
opportunity independently.
2. Term
of
Employment. The term
of employment
(the "Term")
shall commence on the Effective Date and shall continue until December
31, 2021,
unless sooner terminated pursuant to Section 8
of this Agreement. Notwithstanding anything
to the contrary
contained herein,
the provisions of this Agreement
governing protection of
Confidential
Information shall continue in effect as specified in Section 5
hereof and survive the
expiration or termination
hereof. The Term may be
extended for additional one (1) year
periods upon mutual written
consent of Employee and
the Board of
Directors.
3. Best
Efforts; Place of Performance. Employee shall devote
his business time, attention
and energy to the business and
affairs of the Company,
and shall use his
commercially
reasonable best
efforts to advance the lawful interests of the Company
and shall not during the Term be
ctively
engaged in any other business activity that will
adversely interfere
with the performance by Employee of his duties hereunder or
Employee's availability to
perform such duties or that
will adversely
affect, or negatively reflect upon
the Company. The
duties to be
performed by the Employee hereunder
shall be performed primarily t
the offices of the
Company in Plano,
Texas, but
Employee may
be required to travel to
various company sponsored field sites to
oversee drilling,
completion, production
and rework operations
on behalf of the
Company.
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4. Compensation.
As compensation for the performance by
Employee of the duties under
this Agreement,
the Company
shall pay Employee as
follows:
(a) Base
Salary. The Company
shall pay Employee a
Base Salary equal
to$ 10,000.00
per month for the period
November 1, 2018 to December 31, 2021.
Payment of Base Salary shall
be made on a
semi-monthly basis,
in accordance
with the Company's
previously
established payroll payment policy.
The Company
shall pay Employee any
amounts accrued and unpaid hereunder at such
time as the Chief Executive Officer, in good
faith,
believes that
there is adequate cash for
such payment,
with such payment not to
be unreasonably
denied.
(b) Discretionary
Bonus.
Employee shall be
eligible to receive
an additional annual bonus of up
to three
times his preceding twelve months Base Salary {the "Discretionary Bonus")
based upon Employee's performance of duties and responsibilities assigned to him by the
Chief Executive Officer
of the Company. Factors
to be considered
by the Board of
Directors and the
Compensation Committee
shall include, but not be
limited to, growth in
the Company's market
capitalization,
the liquidity
and performance of
the Company's Common
Stock as well as
other factors considered relevant to the Board and
the Compensation
Committee. The Discretionary Bonus shall
be payable either as
a lump-sum payment or
in installments
as determined by the Board of
Directors and the Compensation
Committee of the Company in its
sole discretion. In
addition, the Board of Directors of
the Company shall annually
review the Bonus to
determine whether
an increase in
the amount thereof is warranted. For
purposes of calculating the
first year's bonus, January
1, 2019 shall
be used as the starting
point for calculation.
The Compensation Committee shall
also consider the
issuance of additional
stock options to the
Employee in its sole
discretion.
(c)
Uplisting Bonus and Grant of Common Stock Options. If the
Company's Common Stock
should ever be uplisted to the
American Stock Exchange, the
New York Stock Exchange, or
the NASDAQ Exchange (or any
trading tiers of the NASDAQ Exchange), Employee
shall be paid a one-time Uplisting Bonus {in
cash) of an amount equal to
the sum of Employee's Base Salary
for the twelve-month period
immediately preceding the day
that the Company's
Common Stock
begins trading on any
of the aforementioned exchanges.
Further, Company
hereby grants to
Employee, an option to purchase
up to 1,000,000shares
of the Company's Common
Stock at a price of $ 0.30
per share, subject
to the following vesting schedule:
(a) 100,000
shares shall
vest on the Effective
Date of this Employment
Agreement (b)
300,000
shares shall vest
to Employee on November 1,
2019, (c)
300,000 shares
shall vest to Employee on
November 1, 2020
and {d)
300,000
shares shall vest to Employee on
November 1, 2021.
Unexercised
options shall expire
on the last day of
the thirty-sixth month after vesting has
occurred.
(d)
Withholding; Employee Status. The Company shall
withhold
applicable federal state and local taxes and social security and such other amounts
as may be required by
law from all amounts
payable to Employee
under this
Section 4. Employee shall be
classified as a W-2
employee and Company
agrees to pay all employer-based
taxes levied by
any and all governmental agencies.
(e) Expenses. The
Company shall reimburse
Employee for all
normal reasonable and necessary Expenses incurred by Employee in
furtherance of the business and
affairs of the Company, including
but not limited
to transportation
expenses, lodging expenses, business meals
and company sponsored
entertainment. Reimbursements shall be
made to Employee on timely basis after Employee has
completed
an Employee Request for Reimbursement
of Business Expenses Form and provided Company with copies of
receipts,
credit card
statements, vouchers or other
proof of Employee's
expenditures.
(f) Other
Benefits.
Employee shall be
entitled to all
rights and benefits under any benefit
or other plan (including,
without limitation, dental,
medical, medical reimbursement and hospital plans,
pension plans, employee stock
purchase plans,
profit sharing plans,
bonus plans
and other so-called "fringe" benefits)
as the Company shall make
available to its senior
executives
from time to
time.
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(g) Vacation.
During the Term of this
Agreement, Employee shall be entitled
to take up to three weeks
(15 total days)
of paid Vacation per year,
with such Vacation
days being in addition to
holidays observed by the
Company.
5. Confidential Information.
(a) Employee
recognizes and acknowledges that in the
course of his
duties he is likely to receive confidential or proprietary
information owned by the
Company, its affiliates or third Parties with whom the Company or
any such affiliates has an
obligation of confidentiality. Accordingly, during and
after the Term,
Employee agrees to keep confidential and
not disclose
or make accessible to any other
person or use for any other purpose other than in
connection with the fulfillment of
his duties under this Agreement, any
Confidential and Proprietary Information (as
defined below)
owned by, or received
by or on behalf
of, the
Company or any
of its affiliates. "Confidential and
Proprietary Information"
shall include,
but shall
not be limited to, confidential or
proprietary scientific or
technical information, data,
business plans (both current and under
development),
trade secrets, or any other
confidential or proprietary business information
relating to
development programs, costs,
revenues, investments, credit and financial data, financing
methods, or the business and affairs of the
Company, including any
Confidential and Proprietary
Information that may have been
developed by Employee. Employee agrees to return immediately all Company material and
reproductions (including but not limited,
to writings,
correspondence, notes,
drafts, records, invoices,
technical
and business policies, computer programs
or disks) thereof in Employee's
possession to the Company upon
request and in
any event immediately upon termination of employment.
(b) Unless
granted prior authorization by the Chief Executive
Officer, or
in furtherance
of Employee's
duties as an executive of the Company, Employee
agrees not to disclose
or publish any of
the Confidential
and Proprietary Information, or any
confidential,
scientific, technical
or business information of any other Party to whom the
Company or any of its
affiliates owes an
obligation of confidence, at any time
during or after his employment with the
Company.
(c) Notwithstanding
the foregoing,
the following shall not be
considered to be Confidential Information:
(i) information publicly available (ii)
information which becomes available to Employee on non-confidential basis from
sources other than Company,
provided such Employee does not
know or have reason to know
that such sources are prohibited by contractual, legal or
fiduciary obligation from transmitting such information to
Employee (iii) and
information that was lawfully in
the possession of an Employee prior to the
Effective Date of
this Agreement,
provided such Confidential
Information was not provided to Employee by Company. Company acknowledges that
Employee is bringing with him certain
contacts and
industry knowledge. Such
information shall not be the
Confidential Information
of Company, but
shall remain the confidential
information of Employee.
(d)
The provisions of this Section
5 shall survive any
termination of this
Agreement.
6.
Non-Competition,
Non-Solicitation and
Non-Disparagement.
(a) Employee
understands and recognizes that his
services to the
Company are special and unique
and that in the
course of performing
such services Employee will have
access to and knowledge
of Confidential and
Proprietary Information
(as defined in Section
5) and Employee agrees
that, during the Term
and for a period of twelve (12)
months thereafter, he shall not
in any manner,
directly or indirectly, on behalf of himself or any person,
firm, partnership, joint venture, corporation or other business entity ("Person"),
enter into or engage
in any business which
is
engaged in any
business directly or indirectly
competitive with the business of the Company, either as an
individual for his own
account, or as a partner, joint
venturer, owner,
executive, employee, independent contractor, principal,
agent, consultant, officer, director or
shareholder of a Person in a business competitive with
the Company within the
geographic area of the
Company's
business. The Company acknowledges the need for
Employee to be employed in his
profession and, for the
purposes of this
Agreement, competition shall mean pursuing
oil and gas opportunities that compete directly with the same specific projects that Employee was exposed to as an
Employee.
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(b) The
Company and Employee
each agree that both during the Term and at
all times thereafter, neither
party shall directly or indirectly disparage, whether or not
true. the name or
reputation of
the other party or any of its
affiliates, including but
not limited to,
any officer, director,
employee or shareholder of
the Company or any of its
affiliates.
(c) In
the event that Employee breaches any provisions of Section 5 or this Section 6 or there is a
threatened breach,
then, in addition
to any other rights
which the Company may
have, the Company shall be entitled to injunctive relief to
enforce the restrictions contained in such
Sections.
(d) Each
of the rights and remedies
enumerated in
Section 6(d) shall be
independent of the others
and shall be in addition to and
not in lieu of any other rights and remedies available to the
Company at
law or in equity. If any
of the covenants contained in this Section
6, or any part of any of them, is hereafter
construed or adjudicated to be invalid or
unenforceable,
the same shall not affect the
remainder of the
covenant
or covenants
or rights or
remedies which shall be given full effect
without regard to the invalid
portions.
If any of the covenants
contained in this Section 6
is held to be
invalid or unenforceable because of the duration of such provision or
the area covered thereby, the parties 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.
No such holding of invalidity or unenforceability in
one jurisdiction shall bar or in any way affect the
Company's right to the relief
provided in this Section 6 or otherwise in
the courts of any other state or
jurisdiction within the geographical scope of such covenants as to breaches
of such covenants in such other
respective states or
jurisdictions, such covenants
being, for this
purpose, severable into
diverse and independent
covenants.
(e) The
provisions of this
Section 6 shall
survive any
termination
of this Agreement unless terminated pursuant to Sections
8(c) and (d)
upon which termination the provisions
of this Section shall automatically terminate.
(f) Notwithstanding
any provision to the
contrary herein,
Employee shall be
free to conduct business of any form
or fashion with any contact
that he had prior to the
Effective Date of
this Agreement.
7. Representations
and
Warranties. Employee hereby represents and warrants to the best of his knowledge and
belief to the Company as follows:
(a) Except
as set forth below, neither the execution
or delivery of this Agreement nor the
performance by Employee
of his duties and
other obligations hereunder violate or will
violate any
statute, law,
determination or award,
or conflict with or constitute a
default or breach of any covenant or obligation under (whether immediately, upon the
giving of notice or
lapse of time or both)
any prior employment agreement, contract, or other
instrument to which Employee is a Party or by
which he is bound;
(b) Employee
has the full right,
power and legal
capacity to enter and deliver this Agreement and
to perform the duties and other obligations
hereunder;
(c) This
Agreement constitutes the legal,
valid and binding obligation of
Employee enforceable
against
Employee in accordance with
its terms; and
(d) No
approvals or consents of
any persons or entities are required
for Employee
to execute and deliver this Agreement or perform its duties
and other obligations hereunder.
8. Termination . This Agreement may be terminated as
follows:
(a) Employee
hereunder may
be terminated by the Board
of Directors of the Company for "Cause". Any of the
following actions
by Employee shall
constitute "Cause":
(i) The willful failure, disregard or
refusal by Employee to perform his duties
hereunder,
which is not cured
by Employee within
fifteen (15) days after
notice thereof is given to Employee.
by the
Company;
Employment Agreemen
4
(ii) Any
willful, intentional or grossly negligent act by
Employee, not
excusable under the business judgment rule, having the
effect of injuring, in a
material way (whether financial or otherwise and
as determined in good-faith by
a majority of the Board
of Directors of the
Company), the business
or reputation of the Company or any of its affiliates, including
but not limite to,
any officer, director, executive or
shareholder of the Company or any of its affiliates
(iii)
Willful misconduct by Employee in respect of
the lawful duties or
obligations of
Employee under
this Agreement, including,
without limitation, gross
insubordination with respect
to directions received by
Employee from the Board of Directors of the
Company, which is not
cured by Employee within fifteen (15) days
after notice thereof
is
given to Employee by the Company
(iv)
Employee's
conviction of any
felony or a misdemeanor involving moral turpitude (including entry of
a nolo contendere plea)
(v)
The determination by the Company, after
a reasonable and
good-faith investigation by an independent
investigator following a written allegation by another employee of the
Company, that Employee
engaged in some form of
harassment prohibited by law (including,
without limitation,
verbal harassment, age,
sex or race
discrimination);
(vi)
Any misappropriation or embezzlement of
the property of the
Company or its
affiliates (whether or not a misdemeanor or felony)
(vii) Breach by Employee of
any of the provisions of Sections 5, 6 or
7 of this Agreement and
(viii) Breach
by Employee of any provision of this Agreement which is not
cured by Employee
within thirty (30) days
after notice thereof is given to
Employee by the Company,
unless such breach is not
curable.
(b) Employee's
employment hereunder may
be terminated by the Board of Directors of
the Company due to Employee's Disability
or Death. For purposes of this Agreement, termination
for "Disability" shall
occur (i)
when the Board of Directors of the
Company has provided a written termination
notice to Employee supported by written statement from a reputable independent
physician to the effect that
Employee shall have
become so physically
or mentally incapacitated as to be unable to resume, within the
ensuing twelve (12) months, his
employment hereunder by
reason of physical or mental illness or injury, or (ii)
upon rendering of a
written termination notice by the
Board of Directors of the Company after Employee has been
unable to substantially
perform his duties hereunder for 90
or more consecutive days,
or more than 120 days in
any consecutive twelve month period,
by reason of any physical or mental
illness or injury.
For purposes of this Section
8(b), Employee agrees to make himself
available and to cooperate in any
reasonable examination by a reputable independent physician retained by the Company.
(c) Employee's
employment hereunder may be
terminate by the
Board of Directors of the Company (or its
successor) upon
the occurrence
of a Change of Control. For purposes of
this Agreement
"Change of Control" means
(i) the acquisition, directly
or indirectly, following the date
hereof by any
person (as such term is defined in
Section 13(d) and
14(d)(2) of the Securities Exchange
Act of 1934, as
amended,) in one
transaction or a
series of related
transactions,
of securities of the Company
representing in excess of forty percent (40%)
or more of the combined voting power
of the Company's
then outstanding securities
if such person or his or its affiliate(s) do not
own in excess of 40%
of such voting power on the date of
this Agreement,
or (ii) the
future disposition by the Company (whether direct or indirect, by
sale of assets or
stock, merger,
consolidation or otherwise) of all or substantially all of its business and/or assets in one
transaction or series of related transactions (other than a
merger effected exclusively for the purpose of changing the domicile
of the
Company).
(d) Employee's
employment hereunder may
be terminated by Employee for Good Reason.
For purposes of
this Agreement,
"Good Reason"
shall mean any of the
following: (i) the assignment to Employee of
duties inconsistent
with Employee's
position, duties,
responsibilities, titles or
offices as
described herein (ii) any
material reduction
by the Company of Employee's duties and
responsibilities;
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(iii) any reduction by
the Company of Employee's benefits payable hereunder; or (iv)
Company's material
breach
of any of its
obligations under this Agreement.
9.
Compensation upon
Termination.
(a) If
Employee's employment is terminated
as a result of his
Death or Disability,
the Company shall pay to Employee's
spouse, as applicable,
the amount of Base Salary earned by
Employee through the date of the Death or through the
date of termination notice due to disability, plus any
amounts owed
to Employee hereunder that are
accrued and unpaid
(b) If
Employee's employment is terminated
by the Board of Directors of
the Company for Cause,
then Company shall pay to Employee the Base
Salary through the date of his
termination and Employee shall have no
further entitlement to any
other compensation or benefits from the Company
(c) If
Employee's employment is
terminated by the Company
(or its successor) upon
the occurrence of a Change of Control,
the Company (or its
successor, as applicable) shall pay in
one lump sum to Employee
any amounts owed to Employee hereunder that
are accrued and unpaid plus
the Base
Salary that
would be earned through the end of the Term of
this Employment Agreement.
(d) If
Employee's employment is terminated by the Company
other than as a result of Employee's
death or disability or for reasons
other than those specified
in
Sections 9(b) or
(c), then
the Company shall continue to pay to
Employee the Base Salary and benefits until the
earlier to occur of: (1) the
end of the Term of
this Employment
Agreement, or (2) the date that is one
year following such termination,
and additionally, in one lump sum payment (within 15 days
of such termination), any
amounts owed to Employee
hereunder which were previously accrued or
unpaid.
(e) If
this Agreement is terminated
pursuant to Section 8(d), Company shall continue to pay to Employee
the Base Salary and benefits until the earlier to occur
of (1) the end of the Term of this Employment
Agreement, or (2) the
date that is one year following such termination;
and shall pay in
one lump sum payment (within 15 days of such
termination), any amounts owed to Employee hereunder
which were previously accrued or unpaid.
(f) Upon
termination of Employee for any reason, Company will pay to
Employee
(within 15 days of termination) any expense reimbursement
amounts owed through
the date of
termination.
(g) This
Section 9 sets forth the only obligations of the Company
with respect to the termination of Employee's
employment with the Company, and Employee
acknowledges that,
upon the termination of its employment, ii shall not be
entitled to any
payments or benefits which are not explicitly provided
in
Section 9.
(h) The provisions of this Section 9 shall survive any
termination of
this Agreement.
10.
Miscellaneous.
(a) This
Agreement shall be governed by, and
construed and interpreted in
accordance with, the laws
of the State of Texas, without giving effect to its principles of
conflicts of
laws.
(b) THE
PARTIES AGREE THAT IN THE EVENT THAT LITIGATION ARISES OUT OF OR IS
RELATED TO THIS AGREEMENT, ANY ACTION
MUST BE BROUGHT IN COLLIN COUNTY, TEXAS, AND BOTH
PARTIES HEREBY CONSENT TO PERSONAL
JURISDICTION THERE.
(c) This
Agreement shall be binding upon and inure to the benefit
of the Parties hereto,
and their respective
heirs, legal
representatives,
successors and
assigns.
(d) This
Agreement may not be
assigned by Employee except to an entity that is
affiliated with
Employee. Employee may
assign Employee's payments or
right to receive payments to any entity
that is affiliated
with Employee.
The Company may assign its rights, together
with its obligations hereunder in connection with any
sale, transfer or other disposition of all or
substantially all of its business or assets.
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(e) This
Agreement cannot be amended
orally, or by any course of conduct or
dealing, but only by a written agreement signed by the
Parties hereto.
(f) The
failure of either Party
to insist upon the strict performance of any of the
terms, conditions and
provisions of this Agreement
shall not be
construed as a waiver or
relinquishment of future
compliance therewith, and
such terms, conditions and
provisions shall
remain in
full force and effect. No waiver of
any term or condition of this Agreement on the part
of either Party shall be effective for
any purpose whatsoever
unless such waiver is in
writing and signed by such
Party.
(g) All
notices, requests, consents and other communications, required or permitted
to be given hereunder, shall
be in writing and shall be delivered
personally or by an overnight courier service
or sent by
registered or certified
mail, postage prepaid, return
receipt requested,
to the Parties at the addresses
set forth on the first
page of this
Agreement, and shall be
deemed given when
so delivered personally or by overnight courier, or,
if mailed, five days after the date of deposit
in the United States mails. Either Party
may designate
another address, for receipt
of notices hereunder by giving
notice to the other
Party in accordance with this paragraph (g).
(h) This
Agreement sets
forth the entire agreement and understanding of the Parties
relating to the subject matter hereof. No
representation, promise or
inducement has been made by either Party that is
not embodied in this Agreement, and neither
Party shall be bound by or liable for any alleged representation, promise
or inducement
not so set forth.
(i) The
section headings contained herein are for reference
purposes only and
shall not in any way affect the meaning or
interpretation of this
Agreement.
(j)
This Agreement may be executed in any
number of counterparts,
each of which shall constitute
an original, but
all of which together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, the
Parties hereto have executed this Agreement to be
effective as of the Effective Date.
AMAZING ENERGY OIL AND GAS, CO.
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By:
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/s/ Xxxxxxx X. XxXxxxxx
III |
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Xxxxxxx X. XxXxxxxx - Chief Executive Officer |
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/s/
Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx - Employee |
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