EOS PETRO EMPLOYMENT AGREEMENT
EOS PETRO EMPLOYMENT AGREEMENT
This Agreement is entered into as of June 23, 2013 (“Effective Date”), between Eos Petro, Inc. (“Company”) and Xxxxxx Xxxxx (“CEO”).
In consideration of the covenants and obligations in the Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are acknowledged and accepted, Company and CEO (each, a “Party” and collectively, the “Parties”) agree as follows:
3.2. No Registration. CEO acknowledges that he is fully informed that the shares underlying the Warrant are not being registered under the federal securities laws or the securities or blue sky laws of any state or foreign jurisdiction; that such shares must be held indefinitely unless subsequently registered under any applicable federal or state securities laws, or unless an exemption from registration is available thereunder; and that the Company has no obligation to register any shares underlying the Warrant.
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY APPLICABLE STATE SECURITIES LAWS. SUCH SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES AND MAY NOT BE OFFERED FOR SALE, SOLD, DELIVERED AFTER SALE, TRANSFERRED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FILED BY THE ISSUER WITH THE SECURITIES AND EXCHANGE COMMISSION COVERING SUCH SECURITIES UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION IS NOT REQUIRED.”
5.1.1. “Confidential Information” means any information of or relating to the Company that CEO learns or develops during the course of employment with Company that (1) is not generally known to the public, and (2) has commercial value in Company’s business. Such information includes, but is not limited to, Inventions (as defined below), ideas, designs, strategies, forecasts, sales, process and engineering information, information about new or future products or services, Company’s marketing plans and goals, unpublished financial information, lists of Company’s prospects, information about customer or prospect purchases and preferences, information about employees and lists of Company’s employees, information regarding research and development, consulting processes, management systems, computer software, code and programs, means of accessing Company’s computer systems or networks, algorithms, hardware configurations and any other confidential information which provides Company with a competitive advantage. Confidential Information also includes information of third parties regarding which Company has accepted obligations of confidentiality.
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5.1.2. “Trade Secret” means information, including, but not limited to, a formula, pattern, compilation, program, device, method, technique or process, which both: (a) derives independent economic value, actual or potential, from not being generally known to or readily ascertainable by people who can obtain economic value from its disclosure or use; and (b) is the subject of Company’s efforts to maintain its secrecy that are reasonable under the circumstances.
5.1.3. “Inventions” means all discoveries, developments, designs, improvements, ideas, inventions, trade secrets, formulas, processes, techniques, computer programs, know-how and data, made or conceived or reduced to practice, whether or not patentable or registerable under copyright or similar statutes, and whether or not shown or described in writing or reduced to practice.
5.1.4. “Person” shall mean any individual, company, corporation, partnership, joint venture, limited liability company, limited liability partnership, association or other entity or arrangement under which business may be conducted or contracts may be entered into.
5.2. Nondisclosure. Both during the CEO’s employment with the Company and thereafter:
5.2.1. CEO agrees to maintain in confidence any Confidential Information or Trade Secrets unless or until: (a) it shall have been made public by an act or omission of a party other than himself of herself; or (b) CEO receives such Confidential Information or Trade Secrets from an unrelated third party on a nonconfidential basis.
5.2.2. CEO further agrees to use all reasonable precautions to ensure that all Confidential Information and Trade Secrets are properly protected and kept from unauthorized persons or disclosure.
5.2.3. Upon termination of CEO’s employment with the Company, and if requested by Company at any other time, CEO shall promptly return to Company, and delete from any personal computer or other device, all materials, writings, equipment, models, mechanisms, and the like obtained from or through Company including, but not limited to, all Confidential Information and Trade Secrets, all of which CEO acknowledges and agrees is the sole and exclusive property of Company.
5.2.4. CEO agrees that he will not, without first obtaining the prior written permission of the Board: (a) directly or indirectly utilize any Confidential Information or Trade Secrets in his or her own business or for the benefit of any person or entity other than the Company; (b) develop, manufacture, license, and/or sell any product that is based in whole or in part on Confidential Information or Trade Secrets; or (c) disclose such Confidential Information or Trade Secrets to any person or entity other than the Company.
5.2.5. CEO agrees to keep secret and not disclose to Company any confidential information or trade secrets of any former employer or other Person possessed by CEO as long as such information remains confidential or secret.
5.2.6. If CEO loses or makes unauthorized disclosure of any of the Confidential Information or Trade Secret, the CEO will immediately notify the Company and take all reasonable steps necessary to retrieve the lost or improperly disclosed Confidential Information.
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5.2.7. If CEO is required in a civil, criminal or regulatory proceeding to disclose any part of the Confidential Information or any Trade Secret, CEO will give the Board prompt written notice of the request for information to permit the Company to seek an appropriate remedy or to waive the CEO's compliance with the provisions of this Agreement in regard to the request.
6.1. Any work, Inventions, improvements or ideas and the tangible embodiments of same made or conceived by CEO in connection with and during the period of CEO’s employment (collectively, the “Work”), shall be the sole and exclusive property of Company.
6.2. In the event it is established that any such Work does not qualify as a “Work Made for Hire” as that phrase in defined by the U.S. Copyright laws, CEO agrees to and does hereby assign to Company all of CEO’s right, title and interest in and to such Work including, but not limited to, all patents, copyrights, trademarks and other proprietary rights relating thereto, and all extensions and renewals thereof.
6.3. The CEO recognizes that this Agreement does not require assignment of any invention that qualifies for protection under Section 2870 of the California Labor Code or other similar state provisions.1
6.4. Both during the term of CEO’s employment and thereafter, CEO shall at Company’s expense fully cooperate with Company in the protection and enforcement of any intellectual property rights that may derive as a result of the work performed by CEO during the course of CEO’s employment. This shall include executing, acknowledging, and delivering to Company all documents or papers that may be necessary to enable Company to publish or protect said inventions, improvements, and ideas.
6.5. To the extent that CEO has made or created Inventions, CEO represents and warrants that the items listed on a separate sheet attached to this Agreement and made a part of it is a complete list of all Inventions, as defined in this Agreement, made or created by CEO prior to CEO’s employment by Company, and which CEO wishes to exclude from this Agreement.
7.1. This Agreement will terminate upon the termination CEO’s employment with Company. Upon the termination of the CEO’s employment, CEO will be reimbursed for any unreimbursed business and travel expenses properly incurred by the CEO prior to the date of CEO’s termination. Any portion of the Warrant which has not yet vested on the date of termination of this Agreement shall not vest thereafter. Notwithstanding this provision, the provisions of Sections 5, 6 and 8.2 survive the termination of this Agreement.
1 Section 2870 provides: (a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the employer's equipment, supplies, facilities, or trade secret information except for those inventions that either: (1) Relate at the time of conception or reduction to practice of the invention to the employer's business, or actual or demonstrably anticipated research or development of the employer; or (2) Result from any work performed by the employee for the employer. (b) To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being required to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable.
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If to Company: | Eos Petro, Inc. |
Attention: Xxxxxxx Xxxxxxxx | |
1999 Avenue of the Stars | |
Xxxxx 0000 | |
Xxx Xxxxxxx, XX 00000 | |
If to CEO: | Wealth Preservation, LLC |
Attention: Xxxxxx Xxxxx | |
0000 Xxxxx Xxxxxxx Xxxxx. | |
Xxxx Xxxx Xxxxx, XX 00000 |
8.2. Agreement To Arbitrate Disputes.
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8.2.3. Procedure for Arbitration. The arbitrator shall apply Nevada substantive law and the Nevada Evidence Code to the proceeding. The demand for arbitration must be in writing and made within the applicable statute of limitations period. The arbitrator shall have the authority to resolve discovery disputes, including but not limited to determining what constitutes reasonable discovery. The arbitrator shall have all powers and remedies conferred by law, and shall prepare in writing and provide to the parties a decision and award which includes factual findings and the conclusions upon which such award is based.
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[signature page follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.
“Company”
EOS PETRO, INC, a Nevada corporation
/s/ Xxxxxxx Xxxxxxxx | Date: June 23, 2013 | ||
By: | Xxxxxxx Xxxxxxxx | ||
Its: | Chairman of the Board, CFO |
“CEO”
Xxxxxx Xxxxx, an individual
/s/ Xxxxxx Xxxxx | Date: June 23, 2013 |
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EXHIBIT A TO EMPLOYMENT AGREEMENT – FORM OF WARRANT
THIS WARRANT AND THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”). THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER THE ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED.
Warrant No. 9 | June 23, 2013 |
WARRANT TO PURCHASE COMMON STOCK
**** 600,000 Shares of Common Stock ****
THIS WARRANT CERTIFIES THAT, for value received, Wealth Preservation LLC, or registered assigns (the “Holder”), is entitled to subscribe for and purchase from Eos Petro, Inc., a Nevada corporation (the “Company”), with its principal offices located at 1999 Avenue of the Stars, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000, up to and including the number of fully paid and nonassessable shares of common stock, par value $0.0001 per share (the “Common Stock”) of the Company set forth above (the “Warrant Shares”), at the exercise price of $2.50 per share (the “Warrant Exercise Price”) (and as adjusted from time to time pursuant to Section 3 hereof), in accordance with the exercise procedure set forth in Section 1 hereof and prior to or upon July 31, 2018 (the “Expiration Date”), subject to the provisions and upon the terms and conditions hereinafter set forth.
This Warrant is issued in connection with a certain Employment Agreement, dated as of the date hereof (as amended, modified or supplemented, the “Employment Agreement”), between Company and Xxxxxx Xxxxx. Pursuant to the Employment Agreement, Xx. Xxxxx has agreed to act as the CEO of the Company. Terms used but not defined in this Warrant shall have the meanings given in the Employment Agreement.
1. Exercise Procedure; Method of Exercise; Cash Payment; Issuance of New Warrant.
1.1. The shares underlying this warrant shall vest and become exercisable as follows: commencing on July 31, 2013 and continuing thereafter on the last day of each calendar month that the Employment Agreement remains in effect, 50,000 Warrant Shares shall vest and become exercisable. Thereafter, any portion of this Warrant that has vested may be exercised, in whole or in part and from time to time, at any time until the Expiration Date, pursuant to the provisions contained in this Section 1. However, if Xxxxxx Xxxxx’x Employment Agreement is terminated for any reason, any Warrant Shares which have not yet vested will not vest.
1.2. If Holder elects to exercise any portion of this this Warrant that has vested, Holder shall surrender this Warrant (with the notice of exercise substantially in the form attached hereto as Exhibit A duly completed and executed) at the principal executive offices of Company, accompanied by payment to Company, by: (a) certified or bank check acceptable to Company; (b) cancellation by Holder of bona fide indebtedness of Company to Holder, if agreed to in advance in writing by Company in the Company’s sole and absolute discretion; (c) by wire transfer to an account designated by Company; or (d) any combination of (a), (b) and (c), of an amount equal to the then applicable Warrant Exercise Price multiplied by the number of Warrant Shares then being purchased.
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1.3. The person or persons in whose name(s) any certificate(s) representing the Warrant Shares shall be deemed to have become the holder(s) of record of, and shall be treated for all purposes as the record holder(s) of, the shares represented thereby (and such shares shall be deemed to have been issued) immediately prior to the close of business on the date or dates upon which this Warrant is exercised. In the event of any exercise of the rights represented by this Warrant, certificates for the Warrant Shares so purchased shall be delivered to the Holder hereof as soon as possible and in any event within twenty (20) Business Days after such exercise and, unless this Warrant has been fully exercised or expired, a new warrant having the same terms as this Warrant and representing the remaining portion of such shares, if any, with respect to which this Warrant shall not then have been exercised shall also be issued to the Holder hereof as soon as possible and in any event within such twenty (20) Business Day period. For purposes of this Warrant, the term “Business Day” means any day other than Saturday, Sunday or other day on which commercial banks in Los Angeles, California are authorized or required by law to remain closed.
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3.4. No adjustment in the Warrant Exercise Price shall be required unless such adjustment would require a cumulative decrease of at least $0.01 in such price; provided, however, that any adjustments that by reason of this Section 3 are not required to be made shall be carried forward and taken into account in any subsequent adjustment until made. All calculations under this Section 3(h) shall be made to the nearest cent (with $.005 being rounded upward) or to the nearest one-tenth of a share (with .05 of a share being rounded upward), as the case may be.
3.5. In any case in which Section 3 provides that an adjustment shall become effective on the day next following the record date for an event, the Company may without penalty defer until the occurrence of such event issuing to the Holder with respect to any part of this Warrant exercised after such record date and before the occurrence of such event the additional shares of Common Stock issuable upon such exercise by reason of the adjustment required by such event over and above the shares of Common Stock issuable upon such conversion before giving effect to such adjustment.
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3.6. If, at any time or from time to time while this Warrant is outstanding any event occurs of the type contemplated by the provisions of this Section 3 but not expressly provided for by such provisions (including the granting of stock appreciation rights, phantom stock rights or other rights with equity features), then the Company’s Board of Directors will make an appropriate adjustment in the Warrant Exercise Price so as to protect the rights of the holder; provided that no such adjustment will increase the Warrant Exercise Price as otherwise determined pursuant to this Section 3.
6. Compliance with Securities Act of 1933; Transfer of Warrant or Shares.
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”). THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER THE ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED.
Such legend shall be removed by the Company, upon the request of a Holder, at such time as the restrictions on the transfer of the applicable security shall have terminated.
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6.3.1. surrender this Warrant or certificate representing Warrant Shares at the principal executive offices of the Company or provide evidence reasonably satisfactory to the Company of the loss, theft or destruction of this Warrant or certificate representing Warrant Shares and an indemnity agreement reasonable satisfactory to the Company,
6.3.2. pay any applicable transfer taxes or establish to the satisfaction of the Company that such taxes have been paid,
6.3.3. deliver a written assignment to the Company in substantially the form attached hereto as Exhibit B or appropriate stock power duly completed and executed prior to transfer, describing briefly the manner thereof, and
6.3.4. deliver a written opinion of such Holder’s counsel, or other evidence, if reasonably requested by the Company, to the effect that such offer, sale, transfer or other disposition may be effected without registration or qualification (under the Securities Act as then in effect and any applicable state securities law then in effect) of the Securities.
As soon as reasonably practicable after receiving the items set forth above, the Company shall notify the Holder that it may sell, transfer or otherwise dispose of the Securities, all in accordance with the terms of the notice delivered to the Company. If a determination has been made pursuant to this Section 6(c) that the opinion of counsel for the Holder or other evidence is not reasonably satisfactory to the Company, the Company shall so notify the Holder promptly with details of such determination. Notwithstanding the foregoing, the Securities may, as to such federal laws, be offered, sold or otherwise disposed of in accordance with Rule 144 under the Securities Act if the Company satisfied the provisions thereof and provided that the Holder shall furnish such information as the Company may reasonably request to provide a reasonable assurance that the provisions of Rule 144 have been satisfied. Each certificate representing this Warrant or Warrant Shares thus transferred (except a transfer pursuant to Rule 144 or an effective registration statement) shall bear a legend as to the applicable restrictions on transferability in order to ensure compliance with applicable federal and state securities laws, unless in the aforesaid opinion of counsel to the Holder and to the reasonable satisfaction of the Company, such legend is not required in order to ensure compliance with such laws. Upon any partial transfer of this Warrant, the Company will issue and deliver to such new holder a new warrant (in form and substance similar to this Warrant) with respect to the portion transferred and will issue and deliver to the Holder a new warrant (in form and substance similar to this Warrant) with respect to the portion not transferred as soon as possible and in any event within five (5) Business Days after such transfer.
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COMPANY: | Eos Petro, Inc. |
Attention: Xxxxxxx Xxxxxxxx | |
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 0000 | |
Xxx Xxxxxxx, XX 00000 | |
Tel: (000) 000-0000 | |
Fax: (000) 000-0000 | |
HOLDER: | Wealth Preservation, LLC |
Attention: Xxxxxx Xxxxx | |
0000 Xxxxx Xxxxxxx Xxxxx. | |
Xxxx Xxxx Xxxxx, XX 00000 |
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13. Governing Law; Jurisdiction. This Warrant shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the laws of the State of Nevada, without reference to principles governing choice or conflicts of laws. Each party hereby agrees to submit any dispute under this Warrant to arbitration in accordance with the Services Agreement and irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City and County of Los Angeles, California for the entry of any judgment from such arbitration, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such arbitrator or court, that such proceeding is brought in an inconvenient forum or that the venue of such proceeding is improper. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law.
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IN WITNESS WHEREOF, the parties hereto have caused this Warrant to be duly executed as of the date first written above by its duly authorized officers.
a Nevada corporation
By: | ||
Name: | Xxxxxxx Xxxxxxxx | |
Title: | Chairman, CFO |
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EXHIBIT A
NOTICE OF EXERCISE
To: EOS PETRO, INC. (the “Company”)
The undersigned hereby exercises the right to purchase___________________ of the shares of Common Stock (“Warrant Shares”) of the Company, evidenced by the attached Warrant (the “Warrant”). Capitalized terms used herein and not otherwise defined shall have the respective meanings set forth in the Warrant.
a “Cash Exercise” with respect to ______________ Warrant Shares. |
3. Please issue a certificate or certificates representing said shares in the name of the undersigned or in such other name or names as are specified below:
(Name) | |
(Address) | |
(City, State) |
4. The undersigned represents that the aforesaid shares being acquired for the account of the undersigned for investment and not with a view to, or for resale in connection with, the distribution thereof and that the undersigned has no present intention of distributing or reselling such shares, all except as in compliance with applicable securities laws, and that the undersigned is an “accredited investor” within the meaning of Rule 501 of Regulation D promulgated under the Securities Act of 1933, as amended.
(Date) | |||
(Signature) |
NOTICE: Signature must be guaranteed by a commercial bank or trust company or a member firm of a major stock exchange if shares of capital stock are to be issued, or securities are to be delivered, other than to or in the name of the registered holder of this Warrant. In addition, signature must correspond in all respects with the name as written upon the face of the Warrant in every particular without alteration or any change whatever. |
EXHIBIT B
FOR VALUE RECEIVED, the undersigned holder of the attached Warrant hereby sells, assigns and transfers unto _______________________ whose address is _______________________________________ and whose taxpayer identification number is _________________ the undersigned’s right, title and interest in and to the Warrant issued by Eos Petro, Inc., a Nevada corporation (the “Company”) to purchase _______ shares of the Company’s Common Stock, and does hereby irrevocably constitute and appoint __________________________ attorney to transfer said Warrant on the books of the Company with full power of substitution in the premises.
In connection with such sale, assignment, transfer or other disposition of this Warrant, the undersigned hereby confirms that:
¨ such sale, transfer or other disposition may be effected without registration or qualification (under the Securities Act as then in effect and any applicable state securities law then in effect) of this Warrant or the shares of capital stock of the Company issuable thereunder and has attached hereto a written opinion of the undersigned’s counsel to that effect; or
¨ such sale, transfer or other disposition has been registered under the Securities Act of 1933, as amended, and registered and/or qualified under all applicable state securities laws.
(Date) | ||
(Signature) |
NOTICE: Signature must correspond in all respects with the name as written upon the face of the Warrant in every particular without alteration or any change whatever.
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