AMAZING ENERGY OIL AND GAS SEPARATION AGREEMENT
EXHIBIT 10.1
AMAZING ENERGY OIL AND GAS
Date Delivered to
Executive: January 31,
2020
THIS SEPARATION
AGREEMENT (the
“Agreement”) is made effective as of December 31, 2019,
between Amazing Energy Oil and Gas Company and its wholly owned or
partially owned subsidiaries and affiliates (collectively, the
“Company”) and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
(“Executive”) (collectively the “Parties”)
and is intended to clarify and settle the obligations of the
Parties under the Employment Agreement between Executive and the
Company, dated October 23, 2018 (the “Employment
Agreement”). Unless otherwise defined herein, capitalized
terms will have the meanings ascribed to them in the Employment
Agreement.
1.
Separation from
Employment: Effective as of
December 31, 2019, Executive hereof voluntarily resigns his
employment with the Company (his “Separation
Date”).
2.
Final Wages:
The Parties acknowledge that the
Company has paid to Executive all amounts due under the Employment
Agreement and that Executive was properly paid a monthly salary of
$15,000 from May 1, 2019, through December 31, 2019, and that the
Parties agreed that no increase was payable. The Parties further
acknowledge that no discretionary bonus is due under the Employment
Agreement and that all expenses that Executive has submitted for
reimbursement have been timely paid.
3.
Vesting of Stock
Options: Stock options granted
under the Employment Agreement (“Stock Options”) that
vested prior to the Executive’s Separation Date shall be
subject to the terms of the Employment Agreement and any grant
letter. Stock Options that have not vested as of the
Executive’s Separation Date shall not vest and shall be
forfeited.
4.
Severance
Benefit: In consideration of
Executive’s execution of a General Waiver and Release in the
form attached hereto as Exhibit A by the 21st
day following the delivery of this
Agreement to Executive, and such General Waiver and Release becomes
irrevocable in accordance with its terms, the Company shall pay or
provide to Executive the following:
a.
a
neutral letter of recommendation signed by the Chief Executive
Officer;
b.
as
set forth in Paragraph 7 of this Agreement, modification of the
non-competition provision contained in paragraph 6(a) of the
Employment Agreement;
c.
an
amount equal to the normal, reasonable, and necessary expenses
incurred by Executive in furtherance of the business affairs of the
Company, such reimbursement has been made upon the presentation of
appropriate documentation;
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5. Other
Benefits and Compensation: Except as may be expressly provided herein, this
Agreement is not intended to affect or restrict Executive’s
benefits, rights and coverages under the separate employee benefit
plans, policies and programs generally maintained by the Company
for the benefit of its employees or officers in which Executive
participated as of his Separation Date; provided that Executive
acknowledges that he is not entitled to a bonus under the
Company’s bonus program for 2019 or any prior
year.
6. Extinguishment:
Executive acknowledges that, except as
otherwise provided in this Agreement, payment of the amounts and
benefits described herein extinguishes the Company’s
obligations, in full, under the Employment Agreement and that he is
not entitled to further severance or similar amounts under any
separate plan, policy or program maintained by the
Company.
7.
Non-Compete and
Confidentiality: Notwithstanding the cessation of
Executive’s employment, Executive acknowledges and agree that
the obligations under Paragraph 5 of the Employment Agreement
remain in effect after his employment with the Company ends. It is
further not intended to limit the definition of Confidential and
Proprietary Information contained in the Employment Agreement.
Executive affirms and acknowledges his duty of confidentiality and
agrees to fulfill his obligation to maintain the confidentiality of
Confidential and/or Proprietary Information (as defined in the
Employment Agreement). Executive further acknowledges that he
received and developed only on behalf of the Company confidential
information subject to the terms of Paragraph 5 of the Employment
Agreement which is hereby expanded and made unlimited, retroactive
and prospective, and further made the subject of this Agreement
including, but not limited to: financial data, customer
information, investor information, trade secrets and information on prospects,
procedures, operations, disclosures, logic and analysis in all
professional disciplines, e.g., accounting and law, for securities
filings, geological and geophysical structures development,
exploration of assets of the Company, drilling plans, logs,
potential and/or contractual rights to 3D and 4D seismic studies,
third party engineering and geological evaluations, in house and
joint venture partner engineering analysis, geologist(s) analysis
for exploration and/or production operations and methodologies on
known and unknown leases, options, or other interests in properties
– all of which shall continue to be subject to that certain
non-competition covenant contained in paragraph 6(a) of his
Employment Agreement.
In
addition, the Executive agrees that said information is
Confidential, a Trade Secret and Proprietary to the Company and its
affiliates, agents, partners, employees and assigns, exclusive of
the Executive and that the Company may protect its interests in the
stated assets and rights to information and operations using
equitable remedies, including, but not limited to any and all
temporary, preliminary and/or final injunctive remedies, which
shall be awardable without bond and without the showing of
independent irreparable injury, the mere disclosure by Executive or
threatened disclosure by Executive, whether with or without damages
having been caused to the Company, allowing for the issuance by a
Court of competent jurisdiction, including, this stipulation that
Collin County shall be exclusive venue for any action for
injunction or damages which may be asserted by the Company. This
non-compete agreement and/or that paragraph 6, which survives from
the Executive Agreement, shall not prohibit the Executive from
employment in the oil and gas business regarding assets or
operations outside the existing or future scope of the business
assets and/or operations of the Company.
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8. Non-solicitation
and Non-circumvention. Executive agrees that he shall not,
for a period of one year immediately following the execution of
this Agreement, directly or indirectly, whether for himself or on
behalf of or in conjunction with any other person, persons,
company, partnership, corporation or business:
a.
Solicit any
customer of the Company or an affiliate for the purpose of inducing
or attempting to induce such customer or other person to cease
doing business with the Company or such Affiliate or to divert or
attempt to divert any business from the Company or its
affiliates;
b.
Solicit any
investor in the Company for the purpose of inducing or attempting
to induce the investor to invest in another venture or for the
purpose of affecting the investor’s investment in the
Company;
c.
Induce any employee
or agent of the Company or an affiliate to terminate employment
with the Company or to commence work with any competitor of the
Company or an affiliate; or
d.
Usurp, attempt to
usurp, or assist in the usurpation of any business opportunity of
the Company or an affiliate that became known to the Executive
during the period of his Employment.
9.
Return of
Property: Except as provided
herein, Executive shall promptly return to the Company all of the
property of the Company, including, without limitation, equipment,
computers, fax machines, portable telephones, printers, software,
credit cards, manuals, customer lists, financial data, letters,
notes, notebooks, reports and copies of any of the above and any
confidential information that is in the possession or under the
control of Executive.
10.
Non-disparagement:
The provisions of Section 6(b) of the
Employment Agreement shall be replaced with the
following:
As a material inducement to the Company to enter into this
Agreement, Executive agrees that he will not:
a.
Publicly
criticize or disparage the Company, or privately criticize or
disparage the Company, in any manner intended or reasonably
calculated to result in public embarrassment to, or injury to the
reputation of, the Company in any community in which the Company is
engaged in business;
b.
Damage
the property of the Company or otherwise engage in any misconduct
which is injurious to the business or reputation of the Company;
or
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c.
Take
any other action, or assist any person in taking any other action,
that is adverse to the interests of the Company or inconsistent
with fostering the goodwill of the Company.
For purposes of this paragraph, Company shall include any officer,
director, employee or shareholder of the Company. Notwithstanding
the foregoing, Executive shall not be deemed in breach of the
covenants contained herein solely by reason of testimony compelled
by process of law.
Likewise,
the Company agrees that it will not publicly or privately criticize
or disparage Executive in a manner intended or reasonably
calculated to result in embarrassment to, or injury to the
reputation of, Executive in the community, except that the Company
shall report Executive’s separation on Form 8-K and in such
other manner as may be required under applicable law.
12. Non-assignability:
Neither this Agreement, nor any right
or interest hereunder shall be subject, in any manner, by Executive
to anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance or charge, whether voluntary or involuntary, by
operation of law or otherwise, and any attempt at such shall be
void. Any benefit right or interest under this Agreement shall not
in any way be subject to the debts, contract, liabilities,
engagements or torts of Executive, nor shall it be subject to
attachment or legal process for or against Executive.
Notwithstanding the foregoing, in the event of the
Executive’s death prior to the payment of all amounts
properly due hereunder, payment shall be paid to Executive’s
estate.
13.
Notices:
All notices or communications
hereunder shall be in writing, addressed as
follows:
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To the Company:
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To Executive:
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Amazing Energy Oil and Gas Co.
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Last address on file
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with the Company
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Either party may change its address for notices by providing a
written notice of such address change to the other party. All such
notices shall be conclusively deemed to be received and shall be
effective, (a) if sent by hand delivery, upon receipt, (b) if sent
by telecopy or facsimile transmission, upon confirmation of receipt
by the sender of such transmission, or (c) if sent by registered or
certified mail, on the fifth day on which such notice is
mailed.
14.
Separate
Advice: Executive acknowledges
that neither the Company nor its directors, officers or employees
has provided him with advice about the terms and conditions of this
Agreement, including the taxation of benefits and payments
hereunder, and that neither the Company nor its directors, officers
or employees has any ongoing obligation to do so. Executive has
been advised to consult his own counsel prior to the execution of
this Agreement and he has done so or determined that such counsel
is not necessary.
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15.
General Provisions:
a.
If
any provision of this Agreement is held to be invalid, illegal, or
unenforceable, in whole or in part, such invalidity shall not
affect any otherwise valid provision, and all other valid
provisions shall remain in full force and effect.
b.
Titles
and headings used herein are solely for convenience of reference
and do not constitute a part of this Agreement or affect its
meaning, interpretation or effect.
c.
This
Agreement shall be construed and enforced in accordance with the
internal laws of the State of Texas applicable to contracts made to
be performed wholly within such state.
d.
No
term or condition herein shall be deemed to have been waived, nor
shall there be an estoppel against the enforcement of any provision
of this agreement, except by written instrument of the party
charged with such waiver or estoppel.
e.
This
Agreement may not be modified or amended, except by an instrument
in writing signed by the parties hereto.
f.
This
Agreement constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes any prior
agreement, whether written or oral, with respect
thereto.
16.
Breach of
Covenants: Subject to any
limitations set forth in Exhibit A hereto, Executive agrees that
his material breach of this Agreement shall relieve the Company of
any further obligations hereunder and, in addition to any other
legal or equitable remedy available to the Company, entitle it to
recover any payments or property already paid or transferred to him
pursuant to Paragraph 3 hereof.
17.
No Admission of
Wrongdoing: Executive agrees
that neither this Agreement, Exhibit A hereto, nor the furnishing
of the consideration set forth herein shall be deemed or construed
at any time for any purpose as an admission by the Company of any
liability or unlawful conduct of any kind.
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THIS SEPARATION
AGREEMENT is executed in
multiple counterparts as of the dates set forth below, each of
which shall be deemed an original, to be effective as of the
Separation Date designated above.
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AMAZING ENERGY OIL AND GAS,
CO.
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EXECUTIVE
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By:
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
III
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By:
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/s/ ▇▇▇▇▇▇▇▇ ▇.
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Its:
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Chief
Executive Officer
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Date: |
February 5, 2020 |
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Date:
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February 12,
2020
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Separation Date: December 31, 2019
EXHIBIT A
GENERAL WAIVER AND RELEASE
This General Waiver and
Release (the
“Release”) is made in exchange for the consideration
offered under Paragraph 4 of the Separation Agreement entered into
between me and Amazing Energy Oil and Gas, Co., and its wholly
owned or partially owned subsidiaries and affiliates (collectively,
the “Employer”), dated as of December 31, 2019 (the
“Agreement”) (the “Severance Amount”), the
sufficiency of which I hereby acknowledge.
1.
General Terms and
Conditions. I understand that
signing this Release is an important legal act. I acknowledge that
I have been advised by the Company to consult an attorney before
signing this Release and that I have done so or I have determined
that such consultation is not necessary. I understand that I have
21 calendar days after delivery of the Agreement and this Release
to consider whether to sign this Release, without alteration, and
return it to the Company by first class mail or by hand delivery,
and that if I execute and return this Release before the expiration
of the 21-day period, I will be deemed to have waived the balance
of the period.
2. Release.
In return for the Severance Benefit, I release my Employer,
including its parents, subsidiaries, affiliates, related companies
or entities, employee benefit plans and the directors, officers,
employees, agents, administrators and other persons acting on
behalf of each of them, together with their predecessors,
successors and assignees (collectively referred to as the
“Released Parties”) from all liabilities, demands,
claims, actions, causes of action, and suits of whatsoever nature
that I have or may have against the Released Parties arising from
or in any way related to my employment with my Company, and my
separation from service, whether known or unknown to me, or
suspected or unsuspected, that I have or may have individually or
as a member of any class. I also release the Released Parties from
any and all liabilities, demands, claims or suits that I may have
against any of the Released Parties arising from any act occurring
prior to the execution of this Waiver and Release, whether known or
unknown to me, or suspected or unsuspected, that I have or may have
individually or as a member of any class.
Without
limiting the generality of the foregoing, I hereby specifically
release and discharge the Released Parties from:
a. Any
claims relating my employment by the Company, employment contract,
including any consideration payable with respect thereto, the terms
and conditions of such employment, amounts payable pursuant to
contract, employee benefits related to such employment, my
interaction with other employees, my separation from service,
and/or any of the events relating directly or indirectly to or
surrounding my separation from service, including but not limited
to claims for wrongful or retaliatory discharge, claims of
discrimination, unfair working conditions, constructive discharge,
breach of contract, tort, defamation, libel, slander, and emotional
distress;
b. Any
claims of discrimination, harassment, unfair or inequitable
treatment, whistle blowing or retaliation in connection with my
employment, whether arising under federal, state or local law,
including, without limitation, all arising claims under the Age
Discrimination in Employment Act of 1967, as amended, the Older
Workers’ Benefits Protection Act of 1990, Title VII of the
Civil Rights Act of 1964, as amended, the Americans with
Disabilities Act, the Civil Rights Act of 1991, the Reconstruction
Era Civil Rights Act of 1866, 42 USC §§ 1981-86, as
amended, the Rehabilitation Act of 1973, the Equal Pay Act, the
Fair Pay Act of 2009, the Family and Medical Leave Act, the Genetic
Information Nondiscrimination Act, the Health Insurance Portability
and Accountability Act of 1996, the Employee Retirement Income
Security Act, the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, and all other
federal, state, and local laws, statutes, ordinances and/or
regulations, and common law claims.
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3. Further
Limitations. Notwithstanding paragraph 2 hereof, this
Release does not
release any claim that I may have (a) for continuation of
health care coverage under COBRA, (b) for benefits arising from any
retirement plan or welfare plan in which I was a participant during
my employment, (c) for any rights or claims that arise after
execution of this Release and (d) for any rights arising under this
General Waiver and Release or the Agreement.
Without
limiting the generality of paragraph 2 hereof, it is expressly
acknowledged that this Release does apply to and does release
any claim that I may have for discrimination or retaliation under
any state workers’ compensation act or other state law
prohibiting discrimination or retaliatory discharge, the Age
Discrimination in Employment Act, and/or the Older Workers’
Benefit Protection Act, and/or any other claim that I might assert
for unlawful discharge or discrimination for exercising any right
under any benefit plan of the Employer.
4.
General Provisions.
a.
Should any of the provisions set forth in this Waiver be determined
to be invalid by a court or other tribunal of competent
jurisdiction, it is agreed that such determination shall not affect
the enforceability of other provisions thereof.
b.
I acknowledge that this Release and the Agreement set forth the
entire understanding and agreement between me and the Company
concerning the subject matter of this Release and supersede my
prior or contemporaneous oral and/or written agreements or
representations, if any, between me and the Company. I further
acknowledge that no person has the authority to vary the terms of
this release, except an authorized officer of the Company by means
of a written amendment hereto.
c.
I acknowledge that I have read this Release, have had an
opportunity to ask questions and have it explained to me, and that
I understand that this Release will have the effect of knowingly
and voluntarily waiving any action I might pursue, including breach
of contract, personal injury, retaliation, discrimination on the
basis of race, age, sex, national origin or disability and any
other claims arising prior to the date hereof.
d.
I further agree that in the event of my material breach of this
Release, in addition to any other legal or equitable remedy, the
Company shall be entitled to recover any payments made to me under
the Agreement, subject to any restrictions on such recovery or
relief as may be imposed under applicable law or as may be required
to ensure that this Release is and remains valid and
enforceable.
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e.
I understand that for a period of seven calendar days following the
execution of this Release, I may revoke it by delivering a written
statement to the Company by hand or by registered mail, addressed
to the address for the Company specified in the Agreement, in which
case the Release will not become effective. In such event, the
Company shall have no obligation to provide me the consideration
offered under Paragraph 4 of the Agreement. Upon the expiration of
such seven-day period, I understand that this Release shall be
permanent and irrevocable.
f.
I agree that absent the execution of
this Release, I am not
otherwise due the Severance Benefit
from the Company, except payments under Paragraph 4(c) for services
that I have performed or any contractual agreement with the
Company.
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/s/
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February
5, 2020
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