Employment Agreement
This
Employment Agreement (the "Agreement") is made
and entered into, effective as of December 31, 2010 (the "Effective Date"), by
and between EnerJex
Resources, Inc.,
a Nevada corporation (the "Company"), and Xxxxxx X.
Xxxxxx, Xx. ("Employee"), with
reference to the following facts:
Recitals:
The parties have agreed to execute this
Agreement in order to memorialize the terms and conditions on which the Company
shall employ Employee from and after the Effective Date of this
Agreement.
Agreements:
Now,
Therefore, the parties hereto, intending to be legally bound, do hereby
agree as follows:
1. Position
and Duties
1.1
Position
and Title. The Company
hereby hires Employee to serve as the Chief Executive Officer of the
Company.
(a) Limits on
Authority. Employee shall perform his duties as Chief
Executive Officer of the Company pursuant to this Agreement in compliance with
applicable law, consistent with such direction as the Company's Board of
Directors provides to Employee from time to time, and in accordance with
Company's policies and procedures as published from time to time.
(b) Annual
Reviews. Following each annual anniversary of the Effective
Date of this Agreement, the Board of Directors may review Employee's performance
of his duties pursuant to this Agreement and advise Employee of the results of
that review.
(c) Reporting
and Authority. Employee shall report to the Company's Board of
Directors. Subject to the power and authority of the Company's Board
of Directors to govern the affairs of the Company, Employee shall have full
authority and responsibility for supervising and managing the daily affairs of
the Company, including (i) working with the Company's Board of Directors to
develop and approve business objectives, policies and plans that improve profit
and growth objectives, (ii) communicating business objectives and plans within
the Company, (iii) ensuring that plans and policies are promulgated to and
implemented by subordinate managers, (iv) directing operations to achieve
planned performance goals and developing management systems to effectively
control each Company unit, (v) ensuring that each operating unit provides those
functions required for achieving its business objectives and that each unit is
properly organized, staffed and directed to fulfill its responsibilities, (vi)
developing the organization and personnel, products, facilities, technology, and
appropriate financial resources to secure the position of the Company and to
facilitate its planned development, (vii) directing periodic reviews of the
Company's strategic market position and combining this information with
corollary analysis of the Company's products and financial resources, (viii)
providing periodic financial information concerning the operations of the
business, human resources and sales growth plans to the Company's Board of
Directors, and (ix) ensuring that the operation of the Company complies with
applicable laws.
1.2
Acceptance. Employee hereby
accepts employment by the Company in the capacity set forth in Section 1.1, above,
and agrees to perform the duties of such position from and after the Effective
Date of this Agreement in a diligent, efficient, trustworthy, and businesslike
manner. Employee agrees that, to the best of the Employee's ability
and experience, Employee at all times shall loyally and conscientiously
discharge all of the duties and responsibilities imposed upon Employee pursuant
to this Agreement.
1.3 Business
Time. Employee shall devote his exclusive business time to the
performance of his duties under this Agreement. Except with the prior
written approval of the Board of Directors of the Company, Employee may not be
employed by or provide paid consulting services to any business enterprise other
than the Company and its affiliates.
1.4 Location. Employee
shall perform his duties under this Agreement from the offices maintained by
Employee in San Antonio, Texas, and from the Company's offices in Overland Park,
Kansas. Employee acknowledges and agrees that from time to time he
shall be required to travel (at the cost and expense of the Company) to other
locations outside of San Antonio, Texas, and Overland Park, Kansas, in order to
discharge his duties under this Agreement.
1.5
Term. The term of this
Agreement shall commence as of the Effective Date and shall expire on December
31, 2012, subject to sooner termination pursuant to Section 4,
below.
2.
Compensation. The
Company shall compensate Employee for his services pursuant to this Agreement as
follows:
2.1 Salary. The Company shall
pay to Employee an annual salary in the amount of One Hundred Fifty Thousand
Dollars ($150,000.00) ("Base Compensation"),
payable in periodic installments in accordance with the Company's regular
payroll practices as in effect from time to time. Such annual salary
shall be subject to periodic increases, in such amounts (if any) as the Board of
Directors may determine to be appropriate, at the time of Employee's annual
review pursuant to Section 1.1(b),
above, or at such other times (if any) as the Board of Directors may
select.
2.2 Annual
Bonus. For each calendar year during the term of this
Agreement, Employee shall be eligible to receive a cash bonus in such amount,
and subject to achievement of such individual and Company-wide performance
criteria, as the Board of Directors determines to be appropriate.
2.3 Company
Stock. Subject to approval of the Company's Board of
Directors, which the Company shall seek at the first meeting of the Board held
after the Effective Date of this Agreement, the Company shall grant to Employee
an option to purchase nine hundred thousand (900,000) shares of the Company's
Common Stock. That option will be exercisable at a price per share
equal to the fair market value of the Company's Common Stock on the date on
which that option is approved by the Board, and will be subject to the terms of
the Company's Stock Incentive Plan, as amended and as in effect from time to
time. In no such case will the option exercise price be less than $0.40 per
share.
2.4 Vacation. Employee shall
accrue four (4) weeks' paid vacation in each period of twelve (12) consecutive
months of employment during the term of this Agreement. If Employee
accumulates four (4) weeks' accrued and unused vacation time, then further
accruals shall cease until Employee's accrued and unused vacation time is less
than four (4) weeks.
2.5 Other
Fringe Benefits. The Company shall either (a) provide health
insurance coverage for Employee and his dependents under the Company's group
health insurance plan, at the cost and expense of the Company, or (b) at the
election of Employee, reimburse Employee up to One Thousand Dollars ($1,000.00)
per month for an individual health insurance plan procured by
Employee. In addition to the foregoing, Employee shall be eligible
for coverage under such other fringe benefits as are provided to the Company's
employees generally from time to time.
2.6
Reimbursement
of Expenses. The Company shall
reimburse Employee for authorized expenses incurred by Employee in the
performance of Employee's duties, provided that such expenses
are reasonable in amount, incurred for the benefit of the Company, and are
supported by itemized accountings and expense receipts submitted to the Company
prior to any reimbursement.
3.
Board
Position. On or promptly following the Effective Date of this
Agreement, the Company shall cause Employee to be nominated for election to the
Company's Board of Directors.
4.
PROPRIETARY
INFORMATION
4.1
No
Improper Use of Third-Party Confidential Information. Employee
acknowledges that the Company does not desire to obtain improperly any
proprietary or confidential information owned by any company or other person
with whom Employee now has or heretofore has had a consulting engagement or
employment relationship, and therefore agrees that (a) Employee shall not bring
to the Company or share with any employee or other representative of the Company
any written, electronic, or other materials containing any confidential
information belonging to any such current or former employer or other person,
and (b) Employee shall not provide any such information in any other form to the
Company (or any representative of the Company) in violation of any agreements or
any other obligations that Employee may owe to any other persons.
4.2
Assignment
of Inventions and Works of Authorship and Improvements.
(a) Assignment. Employee
shall keep the Company fully informed of inventions and works of authorship
conceived by Employee (either alone or with others) during Employee's engagement
with the Company and hereby assigns to the Company all rights in and to such
inventions and works of authorship. Employee covenants and agrees
that, upon the request of the Company, Employee shall make, execute, and deliver
such additional assignments and other instruments as may be necessary or
convenient for effectuating or further memorializing such
assignment.
(b) Further
Assurances. Employee further agrees that (i) all such
inventions and works of authorship (to the extent of Employee’s interest
therein) shall be the property of the Company, (ii) Employee shall not
assign to any person other than the Company any interest therein, and (iii)
Employee shall, without charge to the Company, assign to the Company all of
Employee's right, title and interest in any such inventions and works of
authorship, and execute, acknowledge and deliver such instruments as are
necessary to confirm the ownership thereof by the Company.
(c) Patents,
Etc. Upon the request and at the expense of the Company,
Employee shall (i) assist the Company or its nominees in obtaining patents,
copyright, trademark, or other right of protection for any such inventions and
works of authorship, in any country the Company determines to be appropriate,
and (ii) provide the Company all facts and data concerning any such inventions
and works of authorship for such applications and other documents as are
necessary to apply for and to obtain patents or other appropriate protection
therefor.
(d) Depictions. To
deliver to the Company any and all sketches, drawings, models, figures and other
information with respect to any such inventions and works of authorship
immediately upon the request of the Company, and, at the cost and expense of the
Company, to cooperate with the Company in prosecuting to completion any
litigation or other proceedings necessary to protect and enforce the proprietary
rights of the Company therein.
4.3 Nondisclosure,
Non-Circumvention and Noncompetition. Employee agrees, as a
condition of Employee's engagement hereunder, to execute and deliver,
concurrently herewith, that certain Nondisclosure and Non-Circumvention
Agreement in the form attached hereto as Appendix
1, and to perform Employee's obligations thereunder.
4.4 Injunctive
Relief. The parties agree that due to the nature of the
position for which Employee is being employed engaged and the information that
Employee will receive during the course of Employee's employment hereunder, the
Company would be irreparably harmed by any violation, or threatened violation of
this Section 4
of this Agreement, and that the Company shall be entitled to an injunction,
without having to furnish any form of bond, prohibiting Employee from any actual
or threatened violation of Section 4 of this
Agreement. Employee further agrees that the services to be performed
by Employee under this Agreement are of a special, unique, unusual,
extraordinary and intellectual character that gives them peculiar value to the
Company, the loss of which cannot be reasonably or adequately compensated in
damages in an action at law. Employee agrees that the Company, in
addition to any other rights or remedies it may have, shall be entitled to
injunctive and other equitable relief to prevent or remedy a breach of this
Agreement by Employee.
5.
Termination
5.1 Definitions. For
purposes of this Agreement, the term:
(a) "Date of
Termination" shall mean the date specified in the Notice of Termination
(as defined below).
(b) "Disability"
or "Disabled" shall mean that Employee either (i) is unable to engage in
any substantial gainful activity, with or without reasonable accommodation, due
to physical or mental impairment which can be expected to result in death or to
last for a continuous period of twelve (12) months or more, or (ii) is, by
reason of any medically determinable physical mental impairment which can be
expected to last for a continuous period of not less than twelve (12) months,
receiving income replacement benefits for a period of not less than three months
under an accident and health plan sponsored by the Company. Employee
covenants and agrees to submit to a reasonable physical examination by such
licensed medical doctor for the purpose of evaluating whether Employee is
Disabled.
(c) "Cause"
shall mean (i) the willful and repeated failure by Employee to
substantially perform his duties with the Company (other than any such failure
resulting from Employee's incapacity due to Disability), after a written demand
for substantial performance is delivered to Employee by the Board, which demand
specifically identifies the manner in which the Board believes that Employee has
not substantially performed his duties and provides fourteen (14) days for
Employee to cure, or (ii) Employee's willfully engaging in conduct which is
demonstrably and materially injurious to the Company, monetarily or
otherwise. For purposes hereof, no act, or failure to act, on
Employee's part shall be deemed "willful" unless done, or omitted to be done, by
Employee not in good faith and without reasonable belief that Employee's action
or omission was in the best interest of the Company.
(d) "Notice of
Termination" shall mean a written notice which is delivered by the
Company in connection with the Company's decision to terminate Employee's
employment with the Company, setting forth in reasonable detail the reason for
termination of Employee's employment.
5.2
Termination
by Company.
(a) For
Cause. The Company may terminate this Agreement as of the Date
of Termination for Cause. Notwithstanding the foregoing,
Employee shall not be deemed to have been terminated for Cause unless and until
there shall have been delivered to Employee a copy of a resolution duly adopted
by the affirmative vote of not less than three-quarters of the entire membership
of the Board at a meeting of the Board called and held for such purpose (after
reasonable notice to Employee and an opportunity for Employee, together with
Employee's counsel, to be heard before the Board), finding that in the good
faith opinion of the Board that Employee was guilty of conduct set forth above
and specifying the particulars thereof in reasonable detail, provided, however, that if at
such time Employee is a member of the Board of Directors, he shall abstain from
voting with respect to any matter relating to termination of his
employment. Upon termination for Cause, the Company shall pay to
Employee all accrued and unpaid compensation for the period ending on the Date
of Termination (including payment for any accrued and unused vacation time and
the Annual Bonus accrued through the Date of Termination), and shall not be
obligated to pay any additional amounts to Employee hereunder.
(b) Other than
Cause or Disability. Employee's employment is at will and the
Company may terminate this Agreement and Employee's employment for any reason
deemed sufficient by the Company, including by reason of Employee's Disability,
upon delivery of a Notice of Termination (or as of such date as is specified
therein). However, in the event that Employee's employment is
terminated by the Company other than for Cause or by reason of his Disability,
then in addition to paying to Employee all accrued and unpaid wages due to
Employee for periods ended on or prior to the effective date of the termination
(including payment for any accrued and unused vacation time and the Annual Bonus
accrued through the Date of Termination), the Company shall pay to Employee (i)
the Base Compensation that Employee would have earned during the remainder of
Term of this Agreement, and (ii) if such termination occurs after the first date
as of which Employee has been employed hereunder for at least sixteen (16)
consecutive calendar months, then the Company also shall pay to Employee the
additional sum of One Hundred Thousand Dollars ($100,000). Such
amounts shall be paid in equal periodic installments at the time when, and in
the periodic amounts in which, such Base Compensation would have been paid to
Employee if he had remained employed during the remainder of the Term
hereof.
(c) Disability. By
reason of Employee's Disability. If the Company elects to terminate
Employee's employment hereunder by reason of Employee's Disability, and if
Employee is then covered by a disability income policy sponsored by the Company,
then in addition to all accrued and unpaid wages then due to Employee (including
payment for any accrued and unused vacation time and the Annual Bonus accrued
through the Date of Termination).
5.3
Termination
by Employee. Employee may resign from employment and terminate this
Agreement at any time. If Employee terminates this
Agreement:
(a) Disability. By
reason of Employee's Disability, and if Employee is then covered by a disability
income policy sponsored by the Company, then the Company shall pay to Employee
all accrued and unpaid wages due to Employee with respect to all periods ended
on or prior to the effective date of the termination of Employee's employment
hereunder, and the Company shall not owe any additional amounts to Employee by
reason of such termination.
(b) Other. Other
than by reason of Employee's Disability, then the Company shall pay to Employee
all accrued and unpaid wages due to Employee with respect to all periods ended
on or prior to the effective date of the termination of Employee's employment
hereunder, and the Company shall not owe any additional amounts to Employee by
reason of such termination.
5.4
Conditional
Nature of Severance Payments. Notwithstanding any other
provision of this Section 5 or any
other provision of this Agreement to the contrary:
(a)
Noncompete. Employee
acknowledges that the nature of the Company's business is such that if Employee
were to become employed by, or substantially involved in, the business of a
competitor of the Company during the period of one (1) year following the
termination of Employee's employment with the Company, then it would be very
difficult for Employee not to rely on or use the Company's trade secrets and
confidential information in connection with that employment.
(i)
Thus, to avoid the inevitable disclosure of the Company's trade secrets
and confidential information, Employee acknowledges and agrees that his right to
receive the severance consideration described in Sections 5.2 and
5.3, above (to
the extent Employee is otherwise entitled to such payments thereunder) shall be
conditioned upon Employee not directly or indirectly engaging in (whether as an
employee, consultant, agent, proprietor, principal, partner, stockholder,
corporate officer, director or otherwise), or having any ownership interest in
or participating in the financing, operation, management or control of, any
person, firm, corporation or business that directly competes with Company or is
a customer of the Company and has operations located within a radius of five (5)
miles from any lease owned or operated by the Company. If Employee
engages, invests, or otherwise participates in any competitive activity
described in this Section 5.4(a), then
all severance payments consideration to which Employee otherwise may be entitled
under Section
5.2 and 5.3 above, as
applicable, thereupon shall cease.
(ii)
Notwithstanding the foregoing, Employee shall not be deemed to be in
violation of the foregoing restriction solely by reason of Employee's owning not
more than one percent (1.0%) of the equity securities of any corporation or
other business enterprise, the equity securities of which are listed for trading
on a national securities exchange.
(b) Non-Solicitation. Until
the date one (1) year after the termination of Employee's employment with
the Company for any reason, Employee agrees and acknowledges that Employee's
right to receive the severance consideration described in Sections 5.2 and
5.3 (to the
extent Employee is otherwise entitled to such payments thereunder) shall be
conditioned upon Employee not either directly or indirectly soliciting,
attempting to hire, recruiting, encouraging, taking away, hiring any employee of
the Company or inducing or otherwise causing an employee to leave his or her
employment with the Company (regardless whether to commence employment with
Employee or with any other entity or person). If Employee engages in
any such activity, then all severance consideration to which Employee otherwise
would be entitled under Sections 5.2 or 5.3, above, as
applicable, thereupon shall cease.
(c) General
Release. Employee shall not be entitled to receive any of the
severance consideration described in Sections 5.2 and
5.3 above,
unless Employee executes and delivers to the Company, within fifteen (15) days
of the Date of Termination, a release in the form attached hereto as Appendix
2.
(d) Resignation
from Board. Employee shall not be entitled to receive any of
the severance consideration described in Sections 5.2 and
5.3 above,
unless Employee resigns from the Board of Directors in accordance with Section 5.8,
below. If the Company requests such resignation until after payment
of severance consideration has commenced hereunder, then the Company shall be
excused from any further obligation to pay such severance consideration if
Employee thereafter fails to resign from the Board of Directors in accordance
with such Section
5.8.
5.5 Death. This
Agreement shall terminate automatically upon the death of
Employee. If Employee's employment is terminated by reason of
Employee's death, then the Company shall pay to Employee's beneficiaries or
legal representatives (i) within 15 days, all accrued and unpaid Base
Compensation and vacation pay for all periods ended on or before the date of
Employee's death, and (ii) the Company shall not be obligated to make any
further payments hereunder.
5.6
Mitigation. Employee
shall not be required to mitigate the amount of any payment provided for in this
Section 5 by
seeking other employment or otherwise, nor shall the amount of any payment or
benefit provided for in this Agreement be reduced by any compensation earned by
Employee as a result of employment by another employer, self employment
earnings, by retirement benefits, by offset against any amount claimed to be
owing by Employee to the Company, or otherwise. No amounts payable to
Employee under any plan or program of the Company shall reduce or offset any
amounts payable to Employee under this Agreement.
5.7 Deferral
in Commencement Per IRC §409A. The
parties intend that any amounts payable hereunder that could constitute
"deferred compensation" within the meaning of Section 409A of the Internal
Revenue Code ("Section
409A") shall comply with Section 409A, and this Agreement shall be
administered, interpreted and construed in a manner that does not result in the
imposition of additional taxes, penalties or interest under Section
409A. The Company and Employee agree to negotiate in good faith to
make amendments to the Agreement, as the parties mutually agree are necessary or
desirable to avoid the imposition of taxes, penalties or interest under Section
409A. Notwithstanding the foregoing, the Company does not guarantee
any particular tax effect, and Employee shall be solely responsible and liable
for the satisfaction of all taxes, penalties and interest that may be imposed on
or for the account of Employee in connection with the Agreement, as amended by
this Amendment, (including any taxes, penalties and interest under Section
409A), and none of the Company Group shall have any obligation to indemnify or
otherwise hold Employee (or any beneficiary) harmless from any or all of such
taxes, penalties or interest.
(a)
Notwithstanding anything in the Agreement to the contrary, in the event
that Employee is deemed to be a "specified employee" within the meaning of
Section 409A(a)(2)(B)(i) of the Internal Revenue Code and Employee is not
"disabled" within the meaning of Section 409A(a)(2)(C) of the Internal Revenue
Code, no payments in this Agreement that are "deferred compensation" subject to
Section 409A shall be made to Employee prior to the date that is six months
after the date of Employee's "separation from service" (as defined in Section
409A) or, if earlier, Employee's date of death. Following any
applicable six month delay, all such delayed payments shall be paid in a single
lump sum on the earliest date permissible under Section 409A that is also a
business day.
(b)
For purposes of Section 409A, each of the payments that may be made under
this Agreement shall be deemed to be a separate payment for purposes of Section
409A. Amounts payable under this Agreement shall be deemed not to be
a "deferral of compensation" subject to Section 409A to the extent provided in
the exceptions in Treasury Regulation §§ 1.409A-1(b)(4) ("short-term deferrals")
and (b)(9) ("separation pay plans," including the exceptions under subparagraph
(iii) and subparagraph (v)(D)) and other applicable provisions of Treasury
Regulation §§ 1.409A-1 through A-6.
(c)
With respect to the time of payments of any amounts under the Agreement
that are "deferred compensation" subject to Section 409A, references in the
Agreement to "termination of employment" (and substantially similar phrases)
shall mean "separation from service" within the meaning of Section
409A.
(d)
For the avoidance of doubt, it is intended that any indemnification
payment to Employee or expense reimbursement made hereunder shall be exempt from
Section 409A. Notwithstanding the foregoing, if any indemnification
payment or expense reimbursement made hereunder shall be determined to be
"deferred compensation" within the meaning of Section 409A, then (i) the amount
of the indemnification payment or expense reimbursement during one taxable year
shall not affect the amount of the indemnification payments or expense
reimbursement during any other taxable year, (ii) the indemnification payments
or expense reimbursement shall be made on or before the last day of Employee's
taxable year following the year in which the expense was incurred, and (iii) the
right to indemnification payments or expense reimbursement hereunder shall not
be subject to liquidation or exchange for another benefit. In
addition, any reimbursements for COBRA coverage premiums described in this
Agreement shall be paid to Employee as promptly as practicable, and in all
events on or before the last day of the third taxable year of Employee following
the taxable year of the Company in which Employee's employment
terminated.
5.8
Resignation
from Board Following Termination. Employee covenants and
agrees that (a) at any time following the termination of Employee's employment
with the Company for any reason, the Company may request that Employee resign
from the Board of Directors, and (b) within two (2) business days following
Employee's receipt of the Company's written request that Employee resign from
the Board of Directors of the Company, Employee shall tender to the Company an
immediately effective written resignation from the Company's Board of
Directors.
6.
Miscellaneous
6.1
Notices. All
notices permitted or required by this Agreement shall be in writing, and shall
be deemed to have been delivered and received (i) when personally
delivered, or (ii) on the third (3rd)
business day after the date on which deposited in the United States mail,
postage prepaid, certified or registered mail, return receipt requested, or
(iii) on the date on which transmitted by facsimile or other electronic means
generating a receipt confirming a successful transmission (provided that on that same
date a copy of such notice is deposited in the United States mail, postage
prepaid, certified or registered mail, return receipt requested), or (iv) on the
next business day after the date on which deposited with a regulated public
carrier (e.g., Federal Express)
designating overnight delivery service with a return receipt requested or
equivalent thereof administered by such regulated public carrier, freight
prepaid, and addressed in a sealed envelope to the party for whom intended at
the address appearing on the signature page of this Agreement, or such other
address or facsimile number, notice of which is given in a manner permitted by
this Section 6.1.
6.2 Effect on
Other Remedies. Nothing in this Agreement is intended to
preclude, and no provision of this Agreement shall be construed to preclude, the
exercise of any other right or remedy which the Company may have by reason of
Employee's breach of his obligations under this Agreement.
6.3 Arbitration. Except
for any action seeking a temporary restraining order, injunctive order, or other
equitable relief, all disputes, claims and controversies arising out of or
relating to the interpretation or enforcement of this Agreement, including but
not limited to the determination of the scope or applicability of the agreement
to arbitrate set forth in this Section 6.3, shall be
determined by arbitration in San Antonio, Texas, or Los Angeles, California, as
determined by the party initiating the arbitration, before one arbitrator. The
arbitration shall be administered by JAMS pursuant to its Streamlined
Arbitration Rules and Procedures. Judgment on the arbitrator's award
may be entered in any court of competent jurisdiction. This Section 6.3 shall not
preclude parties from seeking provisional remedies in aid of arbitration from a
court of appropriate jurisdiction. The arbitrator may, in the award,
allocate all or part of the costs of the arbitration, including the fees of the
arbitrator and the reasonable attorneys’ fees of the prevailing
party.
6.4 Binding on
Successors; Assignment. This Agreement shall be binding upon,
and inure to the benefit of, each of the parties hereto, as well as their
respective heirs, successors, assigns, and personal
representatives.
6.5 Governing
Law; Venue. This Agreement shall be governed by and construed
in accordance with applicable provisions of the laws of the State of Texas
(without regard to application of its conflict-of-law principles), and each
party hereby consents to the jurisdiction of the courts of the State of Texas
for purposes of all actions commenced to construe or enforce this
Agreement.
6.6 Severability. If
any of the provisions of this Agreement shall otherwise contravene or be invalid
under the laws of any state, country or other jurisdiction where this Agreement
is applicable but for such contravention or invalidity, such contravention or
invalidity shall not invalidate all of the provisions of this Agreement but
rather it shall be construed, insofar as the laws of that state or other
jurisdiction are concerned, as not containing the provision or provisions
contravening or invalid under the laws of that state or jurisdiction, and the
rights and obligations created hereby shall be construed and enforced
accordingly.
6.7 Further
Assurances. Each party agrees, upon the request of another
party, to make, execute, and deliver, and to take such additional steps as may
be necessary to effectuate the purposes of this Agreement.
6.8 Entire
Agreement; Amendment. This Agreement (a) represents the
entire understanding of the parties with respect to the subject matter hereof,
and supersedes all prior and contemporaneous understandings, whether written or
oral, regarding the subject matter hereof, except the Nondisclosure and
Non-Circumvention Agreement by and between Employee and the Company, and
(b) may not be modified or amended, except by a written instrument,
executed by the party against whom enforcement of such amendment may be
sought.
6.9 Counterparts;
Electronic Signatures. This Agreement may be executed in
counterparts, each of which shall be deemed an original and both of which, taken
together, shall constitute one and the same instrument, binding on each
signatory thereto. A copy of this Agreement that is executed by a
party and transmitted by that party to the other party by facsimile or as an
attachment (e.g., in
".tif" or ".pdf" format) to an email shall be binding upon the signatory to the
same extent as a copy hereof containing that party's original
signature.
[Signatures appear on the following
page.]
In Witness
Whereof, the parties hereto have executed this Employment Agreement,
effective as of the date set forth above.
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"Company:"
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"Employee:"
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EnerJex
Resources, Inc., a Nevada corporation
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By
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/s/ C. Xxxxxxx Xxxxxxxxx
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/s/ Xxxxxx X. Xxxxxx, Xx.
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C.
Xxxxxxx Xxxxxxxxx, Chief Executive Officer
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Xxxxxx
X. Xxxxxx, Xx.
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Address, Facsimile No. and
Email for Notices:
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Address, Facsimile No. and
Email for Notices:
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|||
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Xx.
Xxxxxx X. Xxxxxx, Xx.
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||||
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ATTN: Chief
Executive Officer
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c/o
RGW Energy, LLC
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00
Xxxxxxxxx Xxxxx, Xxxxx 000
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123
Xxxxx Avenue
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00000
Xxxxxxxxx Xxxxx
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Xxx
Xxxxxxx, XX 00000
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Xxxxxxxx
Xxxx, XX 00000
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Facsimile
No.: (___) ________________________
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||||
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Facsimile
No.: (000) 000-0000
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Email:
___________________________________
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Email:
_____________________________________
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Appendix
1
Nondisclosure
and Non-Circumvention Agreement
Appendix
2
General
Release
This
General Release (the "Release") is made and
entered into, dated for reference purposes as of __________, 20__, and effective
as of the date identified below, by and between Xxxxxx
X. Xxxxxx, Xx. ("Xxxxxx"), and EnerJex
Resources, Inc., a Nevada corporation (the "Company").
As a
condition of and in order to induce the Company to pay to Xxxxxx the severance
pay due to Xxxxxx under that certain Employment Agreement between the Company
and Xxxxxx dated effective December ___, 2010, and as specifically
described in that certain Notice of Termination dated _________, 20__(the "Notice of
Termination"), the parties hereby agree as follows:
1. Warranty. Xxxxxx
hereby warrants that he is the sole owner of the claims identified in Section 2, below, and
that he has not assigned to any other person any right, title, or interest in or
to any such claims.
2. Release. Xxxxxx
hereby releases the Company, its subsidiaries and affiliates, and each of its
agents, employees, directors, shareholders, officers and other agents
(collectively, the "Company Released
Parties") of and from any and all costs, liabilities, losses, expenses,
and compensation (the "Claims"), except
Excluded Claims (as defined below), which Xxxxxx has or hereafter may have or be
entitled to assert against any of the Company Released Parties arising from or
relating in any way to Xxxxxx'x employment with the Company or the termination
of that employment, for any wrongful termination of employment, including
termination based on age, sex, race, disability or other discrimination under
the Civil Rights Act of 1964, as amended, the Age Discrimination in Employment
Act of 1967, as amended, or other federal, state, or local laws prohibiting such
discrimination, or under federal, state, or local employment laws. In
connection with the foregoing, Xxxxxx further waives and releases all rights, if
any, which Xxxxxx may have under Section 1542 of the California Civil Code,
which reads in pertinent part as follows: "A general release does not
extend to claims which the creditor does not know or suspect to exist in his or
her favor at the time of executing the release, which if known by him or her
must have materially affected his or her settlement with the
debtor."
3. Excluded
Claims. The parties agree that the term "Excluded Claims"
means (i) claims for payment of the separation pay due under the Employment
Agreement, (ii) claims under any written stock option agreement between Xxxxxx
and the Company, (iii) claims for benefits under any qualified retirement plan
sponsored by the Company and in which Xxxxxx may participate, (iv) any right
that Xxxxxx may have to elect "COBRA" continuation coverage under any group
health plan sponsored by the Company, and (v) any right that Xxxxxx may have to
demand indemnification under the Articles of Incorporation or Bylaws of the
Company or any written Indemnification Agreement between the Company and
Xxxxxx.
4. Miscellaneous. This
Release shall be governed by and construed in accordance with Texas
law. This Release (a) memorializes the entire understanding and
agreement between the Company and Xxxxxx regarding the subject matter hereof,
and supersedes all prior and contemporaneous understandings, whether oral or
written, regarding such matters, and (ii) may not be modified or amended, except
by a written instrument executed after the date hereof by Xxxxxx and the
Company. If any action is commenced to construe or enforce this
Agreement or the rights and duties created herein, then the party prevailing in
that action shall be entitled to recover its attorneys' fees and costs in that
action, as well as all costs and fees of enforcing any judgment entered
therein.
Appendix
2, Page 1
5. Effective
Date. This Release shall become effective only if (a) it is
signed by the Company and Xxxxxx, and (b) Xxxxxx does not revoke this Release,
in writing, within seven (7) days following the date on which Xxxxxx signs this
Release (which date of Xxxxxx'x signature is indicated below his signature,
below).
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EnerJex
Resources, Inc., a Nevada corporation
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By
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Name
& title:
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Xxxxxx
X. Xxxxxx, Xx.
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Date
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Date
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Appendix
2, Page 2
