SEPARATION AND SETTLEMENT AGREEMENT
This
Separation and Settlement Agreement (this “Agreement”) is
effective as of December, 31, 2010 by and between C.
Xxxxxxx Xxxxxxxxx (“Employee”) and EnerJex
Resources, Inc., a Nevada corporation (the “Company”)
(hereinafter collectively “the
parties”).
WHEREAS,
Employee is employed by the Company as Chief Executive Officer, President,
Secretary and Treasurer; and,
WHEREAS,
the Company and Employee have entered into an Employment Agreement dated August
1, 2008 and further amended by written agreement (the “Employment
Agreement”); and,
WHEREAS,
the parties acknowledge it is in their individual and mutual best interests for
Employee to resign as an officer and employee of the Company effective December
31, 2010 and to resign from the Company’s Board of Directors effective December
31, 2010; and
WHEREAS,
the parties wish to define the terms and conditions of Employee’s separation
from employment with the Company and the terms and conditions of the settlement
of the Employment Agreement.
NOW,
THEREFORE, in exchange for and in consideration of the following mutual
covenants and promises, the undersigned parties, intending to be legally bound,
hereby agree as follows:
1. Separation. Employee
agrees to resign from, and thereby terminate, his employment with the Company
effective December 31, 2010 (the “Separation Date”). On
the Separation Date, Employee’s employment with the Company and all further
compensation, remuneration, and eligibility of Employee under Company benefit
plans shall terminate, except as otherwise provided in this Agreement or by
applicable law.
2. Resignation from Board of
Directors. Employee further
agrees to resign from any position he may hold on the Company’s Board of
Directors effective December 31, 2010. Contemporaneous with the
execution of this Agreement, Employee shall tender a letter of resignation
effective December 31, 2010 and shall take no action to delay the effectiveness
of the letter of resignation.
3. Payment of Accrued but
Unpaid Salary. For the two-month period
commencing on November 1, 2010 and through the Separation Date, the Company will
pay to Employee a total of $16,666.67 in normal payroll installments, less
legally mandated employment taxes, withholding taxes and such other deductions
as may have been authorized by Employee. Such payment shall be
made on or before December 31, 2010.
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4. Severance
Payments. As and for severance and in consideration of the
termination of Employee’s employment and termination of the Employment Agreement
and for the releases contained herein, the Company shall pay to the Employee the
sum of $50,000 in gross. Such payment shall be deemed to include any
and all sums that Employee is entitled to receive from the Company either as a
matter of contractual obligation under the Employment Agreement or as may be
required under the law and specifically includes payment for any unused vacation
days. The Company may report such payment on Form 1099, but is not
required to pay employment taxes on such payment. Such payment may be
made pursuant to such schedule as Company may deem appropriate, however the
entire amount shall be paid no later than December 31, 2010 and no interest
shall accrue on such payment provided the same is paid on or before such
date.
5. Termination of Employment
Agreement, Issuance of Bonus and Salary Conversion Shares and Other
Compensation.
(a) the
Employment Agreement by and between Employee and the Company shall terminate
effective December 31, 2010. Further, the Non-Compete provisions of the
Employment Agreement shall not be enforced against Employee; and
(b) the
Employee’s fiscal 2009 bonus, consisting of 75,000 shares of restricted common
stock, shall be issued to Employee forthwith; and
(c) the
Company shall transfer title of the 2008 Infiniti M45 (the “Automobile”) to
Employee effective on or about December 31, 2010. Further, the Company shall pay
all taxes, fees and expenses related to the transfer of the Automobile to
Employee, and shall pay employment taxes based on the fair market value of the
Automobile; and
(d) the
Company shall transfer to Employee, by lawful xxxx of sale or other lawful
means, Employee’s present laptop computer and cellular telephone effective on or
about December 31, 2010. Further, the Company shall pay all taxes, fees and
expenses related to the transfer of such personal property to Employee,
including provisions for Employee’s income taxes related to the transfer of such
items of personal property; and
(e) the
Company shall indemnify and hold Employee harmless from any and all claims that
may be asserted against Employee arising from Employee’s personal guarantee of
the loan for the purchase of a certain 2008 Chevrolet Avalanche (the “Truck”), it being
expressly understood that the Company shall be in all respects be responsible
for all taxes, fees, costs and expenses related to the Truck.
6. Transition
Services. Not Applicable.
7. Revocation: Not
applicable.
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8. No Admissions; No Knowledge
of Claim. By entering into this Agreement,
neither Company nor Employee in any way admits that it or Employee has treated
the other unlawfully or wrongfully in any way. Neither this Agreement, nor the
implementation thereof, shall be construed to be, or shall be admissible in any
proceedings as, evidence of an admission by Company or Employee of any violation
of, or failure to comply with, any rule, regulation or order or any Company
policy or Code. Employee agrees that this section does not preclude introduction
of this Agreement by Company to establish that all of Employee’s claims against
Company and its subsidiaries relating to the subject matter hereof were settled,
compromised and released according to the terms of this Agreement. Company
agrees that this section does not preclude introduction of this Agreement by
Employee to establish that all of Company’s claims against Employee relating to
the subject matter hereof were settled, compromised and released according to
the terms of this Agreement. Company agrees that as of the date of this
Agreement, Company has not and does not intend to assert any claim against
Employee in his capacity as director and officer and has no knowledge or
knowledge of any facts that would reasonably be expected to result in a claim.
Employee represents and warrants that, as of the date of this Agreement, there
are no facts or circumstances which require Company to file any information
required under Item 5.02(a) of Current Report on Form 8-K with the
Securities and Exchange Commission under the Securities and Exchange Act of
1934, as amended.
9. Cooperation,
Non-Disparagement, and
Indemnity. Neither the
Employee nor the officers or directors of the Company shall state or otherwise
publish anything about the other party which would adversely affect the
reputation, image or business relationships and goodwill of the other party in
its/his market and community at large. Employee shall fully cooperate with the
Company in defense of legal claims asserted against the Company and other
matters requiring the testimony or input and knowledge of Employee, and the
Company agrees to reimburse Employee for reasonable costs and expenses incurred
as a result thereof. Employee agrees that he will not speak or communicate with
any party or representative of any party, who is known to Employee to be either
adverse to the Company in litigation or administrative proceedings or to have
threatened to commence litigation or administrative proceedings against the
Company, with respect to the pending or threatened legal action, unless given
express permission to do so by the Company, or is otherwise compelled by law to
do so, and then only after advance notice to the Company. Additionally, for a
period of one year following the Separation Date, Employee agrees to be bound by
and follow the same standards and duty of loyalty to the Company as are required
of the Company’s employees and officers, except that Employee may engage in
other employment and related activities so long as such activities do not
violate paragraph 8 of this Agreement. The Company agrees to indemnify Employee
for liabilities and costs incurred by Employee by reason of his employment with
the Company, on the same basis as it does in similar circumstances with other
employees and officers.
10. Confidentiality. Employee
agrees not to at any time talk about, write about, or otherwise publicize or
disclose to any third party the terms of this Agreement or any fact concerning
its negotiation, execution or implementation, except with (1) an attorney,
accountant, or other advisor engaged by Employee to advise him; (2) the Internal
Revenue Service or other governmental agency upon proper request and as required
by law; and (3) his immediate family, providing that all such persons agree in
advance to keep said information confidential and not to disclose it to others.
Nothing in this paragraph shall be construed to prohibit Employee from
disclosing to potential employers the existence of Paragraph 9 of this
Agreement.
11. Return of
Property. Concurrently with the Separation
Date, Employee shall deliver to a designated Company representative all records,
documents, hardware, software, and all other Company property not assigned to
Employee under the terms of this Agreement and all copies thereof in Employee’s
possession.
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12. Company’s Default in
Payment. If Company defaults in
timely payment on the due date of any payment or amount due under this
Agreement, Employee shall give written notice of such default to the person
specified in or pursuant to this Agreement to receive notice on behalf of
Company. Company shall have thirty (30) days after the receipt of such a
notice of default to cure any payment default.
13. Release of All
Claims.
(a) Release of Company by
Employee. In consideration of the receipt of the sums and covenants
stated herein, Employee does hereby, on behalf of himself, his heirs,
administrators, executors, agents, and assigns, forever release, requite, and
discharge the Company and its agents, parents, subsidiaries, affiliates,
divisions, officers, directors, employees, predecessors, successors, and assigns
(“Released
Parties”), from any and all charges, claims, demands, judgments, actions,
causes of action, damages, expenses, costs, attorneys’ fees, and liabilities of
any kind whatsoever, whether known or unknown, vested or contingent, in law,
equity or otherwise, which Employee has ever had, now has, or may hereafter have
against said Released Parties for or on account of any matter, cause or thing
whatsoever which has occurred prior to the date of his signing this Agreement.
This release of claims includes, without limitation of the generality of the
foregoing, the Employment Agreement, any and all claims which are related to the
Employment Agreement or Employee’s employment with the Company and his
Separation from his officer position and his employment on December 31, 2010,
and his resignation from the Company’s Board of Directors effective December 31,
2010; and any and all rights which Employee has or may have had under the
following laws: Title VII of the Civil Rights Act of 1964, as amended by the
Equal Employment Opportunity Act of 1972, the Civil Rights Act of 1991; the
Employee Separation Income Security Act, 29 U.S.C. Section. 1001 et seq.; the
Americans With Disabilities Act; the Age Discrimination in Employment Act, as
amended; and all other federal, state, and local statutes, regulations or public
policies, as well as the laws of contract, torts, and all other subjects;
provided, however, that nothing herein shall be deemed to affect any rights of
Employee under this Agreement or to any pension, employee welfare benefits, or
restricted shares which were vested prior to the Separation Date; and provided
further that nothing herein shall be deemed to affect any rights of Employee to
indemnity for liabilities incurred for acts taken in good faith in the course
and scope of employment with the Company which acts are otherwise covered under
the terms and conditions of Directors and Officers liability insurance
maintained by Company during the employment of Employee.
(b) Release of Employee by
Company. The Company does
hereby, on behalf of itself and its agents, parents, subsidiaries, affiliates,
divisions, officers, directors, employees, predecessors, successors and assigns,
forever release, requite, and discharge the Employee and his heirs,
administrators, executors, agents and assigns, from any and all charges, claims,
demands, judgments, actions, causes of action, damages, expenses, costs,
attorneys’ fees, and liabilities of any kind whatsoever, whether known or
unknown, vested or contingent, in law, equity or otherwise, which the Company
ever had, now has, or may hereafter have against Employee for or on account of
any matter, cause or thing whatsoever which has occurred prior to the date of
Employee’s signing this Agreement; provided, however, that nothing herein shall
be deemed to release or affect any rights of the Company pursuant to this
Agreement.
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14. Complete and Absolute
Defense. This Agreement constitutes, among
other things, a full and complete release of any and all claims released by
either party, and it is the intention of the parties hereto that this Agreement
is and shall be a complete and absolute defense to anything released hereunder.
The parties expressly and knowingly waive their respective rights to assert any
claims against the other which are released hereunder, and covenant not to xxx
the other party or Released Parties based upon any claims released hereunder.
The parties further represent and warrant that no charges, claims or suits of
any kind have been filed by either against the other as of the date of this
Agreement.
15. Non-Admission. It
is understood that this Agreement is, among other things, an accommodation of
the desires of each party, and the above-mentioned payments and covenants are
not, and should not be construed as, an admission or acknowledgment by either
party of any liability whatsoever to the other party or any other person or
entity.
16. Knowing and Voluntary
Execution. Each of the
parties hereto further states and represents that he or it has carefully read
the foregoing Agreement and knows the contents thereof, and that he or it has
executed the same as his or its own free act and deed. Employee further
acknowledges that he has been and is hereby advised to consult with an attorney
concerning this Agreement and that he had adequate opportunity to seek the
advice of legal counsel in connection with this Agreement. Employee also
acknowledges that he has had the opportunity to ask questions about each and
every provision of this Agreement and that he fully understands the effect of
the provisions contained herein upon his legal rights.
17. Executed
Counterparts. This Agreement may be
executed in one or more counterparts, and any executed copy of this Agreement
shall be valid and have the same force and effect as the originally-executed
Agreement.
18. Governing
Law. This Agreement shall be governed by,
enforced under, and construed in accordance with the laws of the State of
Kansas, except only to the extent preempted by federal law.
19. Modification. No
provision of this Agreement may be modified, waived or discharged unless such
waiver, modification or discharge is agreed to in writing and signed by the
Employee and the Company.
20. Assignability. Employee’s
obligations and agreements under this Agreement shall be binding on the
Employee’s heirs, executors, legal representatives and assigns and shall inure
to the benefit of any successors and assigns of the Company. The Company may
assign this Agreement or any of its rights or obligations arising hereunder to
any party, as part of a sale of its assets or other similar change of control
provided that the assignee agrees to be legally bound by the terms of this
Agreement.
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21. Entire
Agreement. This Agreement constitutes the
entire agreement between the parties hereto in respect of the subject matter
hereof, and this Agreement supersedes all prior and contemporaneous agreements
between the parties hereto in connection with the subject matter
hereof.
22. Covenant Not To
Xxx. Without limiting in
any way the releases set forth above, each of the parties hereto hereby
covenants and warrants that it will not xxx or otherwise commence or prosecute,
or cause to be commenced or prosecuted, any action or proceeding, civil,
criminal, administrative, or otherwise, related in any way to any matter
released by this Agreement.
23. Costs.
Each party shall bear his/her or its attorney’s fees, cost and expenses
incurred in connection with this Agreement.
24. Attorneys’
Fees. In the event of the
bringing of any action, suit or proceeding by any party hereto against any other
party hereto by reason of a breach of this Agreement or any portion thereof,
then the prevailing party in such action or suit shall be entitled to have and
recover all costs and expenses of suit, including reasonable attorneys’ fees, as
well as all costs and expenses, including reasonable attorneys’ fees, incurred
prior to the commencement of any action, suit or proceeding in connection with
enforcing this Agreement.
25. Titles. The
titles and subtitles in this Agreement are for the convenience of the reader
only and are not to be considered in any construction of the
Agreement.
26. Gender. As
used in this Agreement, masculine, feminine or neuter gender and the singular or
plural number shall each be deemed to include the others wherever and whenever
the context or construction so dictates.
27. Statement of
Understanding: By executing this
Agreement, Employee acknowledges that (a) he has had at least twenty-one
(21) days to consider the terms of this Agreement and has considered its
terms for that period of time or has knowingly and voluntarily waived his right
to do so; (b) he has consulted with, or has had sufficient opportunity to
consult with, an attorney of his own choosing regarding the terms of this
Agreement; (c) he has read this Agreement and fully understands its terms
and their import; (d) except as provided by this Agreement, he has no
contractual right or claim to the benefits described herein; (e) the
consideration provided for herein is good and valuable; and (f) he is entering
into this Agreement voluntarily, of his own free will, and without any coercion,
undue influence, threat, or intimidation of any kind or type
whatsoever.
[SIGNATURE
PAGE TO FOLLOW]
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IN
WITNESS WHEREOF, the undersigned have executed this Separation Agreement in
triplicate originals as of the 20th day of
December, 2010 to be effective as of December 31, 2010.
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EMPLOYEE:
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/s/ C. Xxxxxxx Xxxxxxxxx
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C.
Xxxxxxx Xxxxxxxxx
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COMPANY:
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EnerJex
Resources, Inc., a Nevada corporation
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By:
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/s/ Xxxxxx Xxxx
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By:
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/s/ Xxxxx Xxxx
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Xxxxxx
Xxxx, Director
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Xxxxx
Xxxx, Director
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By:
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/s/ Xxxxxx Xxxxxx
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Xxxxxx
Xxxxxx, Director
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