EMPLOYMENT AGREEMENT
EXHIBIT 10.16
This
EMPLOYMENT AGREEMENT (the “Agreement”), dated and
effective as of October 23, 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 Xxxxxxxx X. Xxxxxxx, an individual
whose address is 0000 Xxxx Xxxxxxx, Xxxx Xxxx, 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 Financial 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
Financial 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 conflict s 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
Compan
(b)
Acceptance. At the
commencement of the Term, Employee hereby accepts such employment
and agrees to render the Services.
(c)
Independent 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 actively 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 at the office of the Company in Plano, Texas
subject to reasonable travel requirements on behalf of the
Company.
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 April 30, 2019, then $ 15,000.00 per
month for the period May 1, 2019 to October 31, 2019, then $
20,000.00 per month for the period November 1, 2019 to November 30,
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 the 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 unreasonable
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)
Signing Bonus, Uplisting Bonus and Grant of
Common Stock Options. In addition to the Discretionary Bonus
set forth in Subsection 2(b) hereof, Employee shall be paid a
Signing Bonus of 175,000 shares of Amazing Energy Oil and Gas, Co.
common stock. Said stock shall be subject to Rule 144 of Securities
and Exchange Commission.
In
addition, 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 1,000,000
shares 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 a 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.
(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 (15 total days),
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
a 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, xxxx xx 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.
(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 an y 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 divers e 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;
(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 limited 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, a termination
for “Disability” shall occur (i) when the Board of
Directors of the Company has provided a written termination notice
to Employee supported by a 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 terminated 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; (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, it 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.
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(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.
(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.
SIGNATURES TO
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Employment
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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/ Xxxxxxxx X.
Xxxxxxx
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Xxxxxxxx X. Xxxxxxx
- Employee
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Employment
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