EXHIBIT 10.1


 


 


CHANGE OF CONTROL AGREEMENT


 


THIS
CHANGE OF CONTROL AGREEMENT (the “Agreement”) dated as of April 5, 2013, between Black Ridge Oil & Gas,
Inc., a Nevada corporation, having a place of business at 10275 Wayzata Boulevard Suite 310, Minnetonka MN 55305 (the "Company"),
and Ken DeCubellis (the "Executive").


 


WITNESSETH


 


WHEREAS,
the Executive has assumed duties of a responsible nature to the benefit of the Company and to the satisfaction of the Board of
Directors (the "Board");


 


WHEREAS,
the Board believes it to be in the best interests of the Company to enter into this Agreement to assure the Executive's continuing
services to the Company including, but not limited to, under circumstances in which there is a possible, threatened or actual Change
of Control (as defined below);


 


WHEREAS,
the Board believes it is imperative to diminish the inevitable distraction of the Executive by virtue of the personal uncertainties
and risks created by a pending or threatened Change of Control and to encourage the Executive's full attention and dedication to
the Company currently and in the event of any threatened or pending Change of Control; and


 


WHEREAS,
in order to accomplish all the above objectives, the Board has authorized the Company to enter into this Agreement;


 


NOW,
THEREFORE, in consideration of the mutual promises herein contained, the Company and the Executive hereby agree as follows:


 


1.             Certain
Definitions.


 


“Cause”
means termination of the Executive’s employment for (i) any conviction of the Executive, or plea of guilty or no contest
by the Executive, to a felony, or (ii) any act or acts of dishonesty by the Executive intended to result in personal enrichment
to the Executive at the expense of the Company; or (iii) failure to follow the lawful instructions of the Board.


 


“Change
of Circumstance" means any event which would constitute (a) a demotion of the Executive or any assignment to material
duties that are substantially inconsistent with the Executive’s position and title immediately prior to such assignment,
(b) a reduction in the Executive’s base salary, other than reductions in salaries applied to executives generally, (c) without
the Executive's express written consent, the requirement by the Company that the Executive's principal place of employment be relocated
more than fifty (50) miles from his place of employment prior to the Change of Control, (d) a substantial reduction in benefits
and perquisites provided to the Executive not applicable to executives generally, or (e) a material change in the terms and conditions
of the Executive’s employment other than as permitted by (b) or (d) above; provided, however, none of the foregoing shall
constitute a Change of Circumstance unless the Executive objects thereto by giving written notice to the Board within 30 days after
the Executive becomes aware of such demotion, assignment, reduction, requirements or other change and the Company fails to correct
the same within 30 days following receipt of such notice. Notwithstanding the foregoing, a Change of Control does not, standing
alone, constitute a Change of Circumstance.


 






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"Change
of Control" or "Change in Control" shall mean:


 


(1)             The
acquisition by any person, entity or “group”, within the meaning of Section 13(d) (3) or 14(d) (2) of the Securities
Exchange Act of 1934 (the “Exchange Act”) (excluding, for this purpose, (A) the Company, (B) any employee benefit plan
of the Company or its subsidiaries which acquires beneficial ownership of voting securities of the Company, or (C) Lyle Berman,
Bradley Berman, Bradley Berman Irrevocable Trust, Julie Berman Irrevocable Trust, Jessie Lynn Berman Irrevocable Trust, Amy Berman
Irrevocable Trust and Steven Lipscomb) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange
Act) of 33% or more of either the then outstanding shares of common stock or the combined voting power of the Company’s then
outstanding voting securities entitled to vote generally in the election of directors, provided that the issuance by the Company
as part of an equity offering of shares of 33% or more of either the then outstanding shares of common stock or the combined voting
power of the Company’s then outstanding voting securities entitled to vote generally in the election of directors shall not
constitute a Change in Control; or


 


(2)             Individuals
who, as of the date hereof, constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least
a majority of the Board, provided that any person becoming a director subsequent to the date hereof whose election, or nomination
for election by the Company’s stockholders, was approved by a vote of at least a majority of the directors then comprising
the Incumbent Board (other than an election or nomination of an individual whose initial assumption of office is in connection
with an actual or threatened election contest relating to the election of the Directors of the Company, as such terms are used
in Rule 14a-11 of Regulation 14A promulgated under the Exchange Act) shall be, for purposes of this Agreement, considered as though
such person were a member of the Incumbent Board; or


 


(3)             Approval
by the stockholders of the Company of (A) a reorganization, merger or consolidation, in each case, with respect to which persons
who were the stockholders of the Company immediately prior to such reorganization, merger or consolidation do not, immediately
thereafter, own more than 50% of the combined voting power of the reorganized, merged or consolidated company’s then outstanding
voting securities entitled to vote generally in the election of directors of the reorganized, merged or consolidated company, or
(B) a liquidation or dissolution of the Company or (C) the sale of all or substantially all of the assets of the Company.


 






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Notwithstanding
the foregoing, in no event shall a Change of Control due to a breach of covenants under the Company’s indebtedness or a default
on the Company’s indebtedness trigger any payments to Executive under this Agreement.


 


"Change
of Control Date" shall mean the first date on which a Change of Control occurs. Anything in this Agreement to the contrary
notwithstanding, (a) if a Change of Control occurs; (b) if prior to the date on which such Change of Control occurs, the Executive's
employment with the Company is terminated or the Executive ceases to be the Chief Executive Officer (“CEO”)
of the Company; and (c) if it is reasonably demonstrated by the Executive that such termination of employment or cessation of status
as CEO (i) was at the request of a third party who has taken steps reasonably calculated to effect the Change of Control or (ii)
otherwise arose in connection with or anticipation of the Change of Control, then for all purposes of this Agreement the "Change
of Control Date" shall mean the date immediately prior to the date of such termination of employment or cessation of status
as CEO.


 


"Disability"
means the inability of the Executive to perform the Executive’s duties as CEO, or the Executive’s position and title
at such time, by reason of illness or other physical or mental impairment or condition, if such inability continues for an uninterrupted
period of 90 days or more. A period of Disability shall be “uninterrupted” unless and until the Executive returns to
full-time work for a continuous period of at least 30 days. A Disability period shall be suspended during any period the Executive
returns to full-time work for a continuous period of at least five days.


 


2.             Obligations
of the Company in Certain Circumstances. If, (a) while the Executive is employed by the Company, there is a Change of
Control and (b) on or within 12 months after the Change of Control Date either (x) the Company terminates the Executive's employment
other than for Cause, Disability, or death or (y) there is a Change in Circumstance (such date in the case of (x) or (y) the “Date
of Termination”), then upon execution of a release, the Company shall pay as severance pay to the Executive an amount
equal to the Base Salary that Executive would have received for a twelve (12) month period (the “Payment Period”)
at an annualized rate equal to the higher of the rate in effect immediately prior to the Change in Control or the rate in effect
on the Date of Termination. Such cash payment shall be payable in accordance with the Company’s regular pay period schedule
over the Payment Period. The Executive shall have the right to purchase health and dental coverage under the Company’s group
policies then in effect for the Payment Period, and during the Payment Period the Company shall make contributions on behalf of
the Executive for the purchase of such health and dental coverage as it provides to its other executive employees as of the Date
of Termination.


 


3.             Successors.


 


(a)             This
Agreement is personal to the Executive and shall not be assignable by the Executive other than by will or the laws of descent and
distribution. This Agreement shall inure to the benefit of and be enforceable by the Executive's legal representatives.


 






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(b)             This
Agreement shall inure to the benefit of and be binding upon the Company and the Executive and their respective successors and assigns.


 


(c)             The
Company will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially
all of its business and/or assets to assume expressly and agree to perform this Agreement in the same manner and to the same extent
that the Company would be required to perform it if no such succession had taken place. As used in this Agreement, the “Company"
shall mean as hereinbefore defined and any successor to its business and/or assets as aforesaid which assumes and agrees to perform
this Agreement by operation of law, or otherwise.


 


4.             Miscellaneous.


 


(a)             This
Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota, without reference to principles
of conflict of laws. The captions of this Agreement are not part of the provisions hereof and shall have no force or effect. This
Agreement may not be amended or modified otherwise than by a written agreement executed by the parties hereto or their respective
successors and legal representatives.


 


(b)             All
notices and other communications hereunder shall be in writing and shall be given by hand delivery to the other party or by registered
or certified mail, return receipt requested, postage prepaid, addressed as follows:


 





	If to the Executive:	If to the Company:
	 	 
	Ken DeCubellis	Black Ridge Oil & Gas, Inc.
	(Home address	10275 Wayzata Boulevard
	separately given)	Suite 310
	 	Minnetonka MN 55305
	 	Attention: Board of Directors




 


or to such other address as
either party shall have furnished to the other in writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressees.


 


(c)             The
invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.


 


(d)             The
Company may withhold from any amounts payable under this Agreement such Federal, state or local taxes as shall be required to be
withheld pursuant to any applicable law or regulation.


 


(e)             The
Executive's failure to insist upon strict compliance with any provision hereof shall not be deemed to be a waiver of such provision
or any other provision thereof.


 


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IN WITNESS
WHEREOF, the Executive has hereunto set his hand and, pursuant to the authorization from the Board, the Company has authorized
and directed the undersigned director to execute and deliver this Agreement in the Company’s name, all as of the day and
year first above written.


 


 


EXECUTIVE


 


 


/s/ Ken
DeCubellis


Ken DeCubellis


 


 


BLACK RIDGE OIL & GAS,
INC.


 


 


By /s/Bradley
Berman 


Name: Bradley Berman


Title: Chairman of the Board,
Director


 


 




 


 


 



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