CAMBER ENERGY, INC. 8-K


 


Exhibit 10.1


 





SEPARATION
AND RELEASE AGREEMENT


 


This
Separation and Release Agreement (this “Agreement”) confirms the terms of Richard N. Azar, II’s
(“Azar”, “you”, or “your”) separation from employment as the Chief Executive Officer of Camber
Energy, Inc., a Nevada corporation (the “Company”).


 


You
agree that effective as of 8:00 AM (Central Time) on May 25, 2018 (the “Separation Date”), your
employment with the Company shall be considered mutually terminated by the parties. Along with such termination, all Company benefits
to you (i.e., health insurance coverage, 401(k) plans and life insurance (if any)) will be terminated, provided that the Company
will provide COBRA paperwork as required by law (if applicable).


 


As
of the Separation Date, you will be paid all wages, salary, bonuses, commissions, expense reimbursements, and any other amounts
that you are owed, if any, including, but not limited to $64,000 in accrued director’s fees approved by the Board of Directors
on April 25, 2018. Such compensation shall be paid in addition to the Severance Payment provided for hereinafter and is not contingent
upon your performance of any other provisions in this Agreement. You will also be paid what you are owed for any vacation time,
sick time, paid time off or paid leave of absence, or in connection with any severance or deferred compensation plan, if eligible,
and that you will have been given all time off to which you were entitled under any policy or law, including but not limited to
leave under the Family and Medical Leave Act of 1993.


 


Although
you are not otherwise entitled to receive any severance from the Company in connection with your voluntary separation from employment,
subject to, and in consideration for, your providing the Company with an executed copy of this Agreement as provided herein, and
not revoking this Agreement, and your compliance with all of the terms and conditions of this Agreement, all other agreements
entered into by and between you and the Company, and all Company policies and procedures, the Company also will pay you (a) a
lump sum severance payment equal to $150,000, payable in three installments of $50,000 each, on June 1, 2018, July 2, 2018 and
August 1, 2018, and (b) warrants to purchase 1,000,000 shares of the Company’s common stock in the form of Exhibit A
hereto (the “Warrants”), which will have an exercise price equal to the closing stock price of the
Company’s common stock on the date this Agreement is agreed to by the parties, and the exercise of which Warrants will be
subject to (i) approval by the NYSE American of the additional listing of the shares of common stock issuable upon exercise thereof,
(ii) to the extent required by the rules of the NYSE American, the approval of the shareholders of the Company of the issuance
of the shares of common stock issuable upon exercise thereof, and (iii) to the extent necessary, an increase in the number of
authorized but unissued and unreserved shares of common stock of the Company (collectively, (i) through (iii) the “Exercise
Prerequisites”), in each case less all applicable withholdings and required deductions (the “Severance
Payment”). The Company agrees to use commercially reasonable efforts to satisfy the Exercise Prerequisites as promptly
as is commercially reasonable.


 


The
Severance Payment provisions set forth in this Agreement shall be referred to as the “Severance Benefits.”
You agree that the Severance Benefits are something of value and that you are not already entitled to these additional benefits.


 


In
addition to the Severance Benefits, the Company confirms and acknowledges that:


 


		(a)	The
                                         Company is not prohibiting you from contacting the Company’s lender; IBC, regarding
                                         an acquisition by IBC of the Company’s assets, which are currently secured by security
                                         interests of IBC, notwithstanding that, as long as you remain a member of the Board of
                                         Directors of the Company you are required to continue to comply with your fiduciary duties
                                         to the Company; and



 


		(b)	The
                                         Company will pay $7,500 per month, payable on the 1st business day of each
                                         month, for rent to you or your designee during the period the Company utilizes its current
                                         offices at 4040 Broadway, Suite 425, San Antonio, Texas, 78209, and such rental arrangement
                                         shall be considered on a month-to-month basis, provided that the Company may terminate
                                         such arrangement at any time with a minimum of thirty days’ notice. The Company
                                         shall not be required to maintain a deposit.



 






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You
are solely responsible for any and all tax obligations or other obligations under federal and/or state law pertaining to the receipt
of the Severance Benefits in the Agreement, and you hereby agree to hold the Company and its respective affiliates harmless from
any and all liability relating to such obligations.


 


In
exchange for providing you with the Severance Benefits, you agree to fully release the Company, and its respective current and
former parent companies, subsidiaries, and other affiliated companies as well as any of their respective current and former insurers,
directors, officers, agents, shareholders, employees, consultants, payroll processing agents, agents, affiliates and assigns (collectively,
the “Released Parties”) from any claims you may have against them as of the date you sign this Agreement,
whether such claims arise from common law, statute, regulation, or contract. This release includes but is not limited to rights
and claims arising under or arising out of (i) Title VII of the Civil Rights Act of 1964, as amended; (ii) the Americans with
Disabilities Act, as amended; (iii) the Employee Retirement Income Security Act of 1974, as amended (excluding claims for accrued,
vested benefits under any employee benefit plan of the Company in accordance with the terms of such plan and applicable law);
(iv) the Age Discrimination in Employment Act, as amended, or the Older Workers Benefit Protection Act; (v) the Texas Payday Law,
Texas Workers’ Compensation Act and Texas Workforce Innovation and Opportunity Act; (vi) alleged discrimination or retaliation
in employment (whether based on federal, state or local law, statutory or decisional); (vii) any law (statutory or decisional)
providing for attorneys’ fees, costs, disbursements and/or the like; (vii) any other federal, state, or local law prohibiting
discrimination and/or harassment; and (viii) claims under the Texas Labor Code, the Texas Business Organizations Code, and all
other laws and regulations relating to employment. By accepting the Severance Benefits, you have agreed to release the Released
Parties from any liability arising out of your employment with and separation from the Company. This would include, among other
things, claims alleging breach of contract, defamation, emotional distress, harassment, retaliation, or discrimination based on
age, gender, race, religion, national origin, disability or any other status under local, state, or federal law. This release
does not prevent you from pursuing any workers’ compensation benefits to which you may be entitled. Furthermore, nothing
in this Agreement shall be construed to prevent you from filing a charge with or participating in an investigation conducted by
any governmental agency, including, without limitation, the United States Equal Employment Opportunity Commission (“EEOC”)
or applicable state or city fair employment practices agency, to the extent required or permitted by law. Nevertheless, you understand
and agree that you are waiving any relief available (including, for example, monetary damages or reinstatement), including but
not limited to financial benefit or monetary recovery from any lawsuit filed or settlement reached by the EEOC or anyone else
with respect to any claims released and waived in this Agreement.


 


You
understand and acknowledge that you are releasing potentially unknown claims, and that you may have limited knowledge with respect
to some of the claims being released. You acknowledge that there is a risk that, after signing this Agreement, you may learn information
that might have affected your decision to enter into this Agreement. You assume this risk and all other risks of any mistake in
entering into this Agreement and confirm that it is your intention to release all claims that you have or may have against the
Released Parties, whether known or unknown, suspected or unsuspected. You agree that this Agreement is fairly and knowingly made.


 


The
waiver and release contained in this Agreement does not apply to any claim which, as a matter of law, cannot be released by private
agreement. If any provision of the waiver and release contained in this Agreement is found to be unenforceable, it shall not affect
the enforceability of the remaining provisions and a court shall enforce all remaining provisions to the full extent permitted
by law.


 


You
represent, warrant and covenant to each of the Released Parties that at no time prior to or contemporaneous with your execution
of this Agreement have you (i) knowingly engaged in any wrongful conduct against, on behalf of or as the representative or agent
of the Company; or (ii) knowingly violated any state, federal, local or other law, including any securities laws or regulations.
The Company acknowledges the existence of that certain lawsuit filed in the United States District Court for the Western District
of Texas under Civil Action No. 5:17-cv-00962, styled Aaron Rubenstein v. Richard N. Azar, II (the “Rubenstein
lawsuit”), complaining of an alleged violation of Section 16(b) of the Securities Exchange Act of 1934, as amended
(the “Act”), 15 U.S.C. § 78p(b), which Azar has vigorously disputed and defended. The Company stipulates
that this section shall not apply to the Rubenstein lawsuit.


 






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You
agree that this Agreement does not alter any agreements or promises you made prior to or during your employment concerning intellectual
property, confidentiality, non-solicitation, or non-competition.


 


You
agree that you are the only person who is able to assert any right or claim arising out of your employment with or separation
from the Company. You promise that you have not assigned, pledged or otherwise sold such rights or claims, nor have you relied
on any promises other than those contained in this Agreement.


 


You
agree that neither this Agreement nor payment or effectiveness of the Severance Benefits being offered to you for this Agreement
is an admission by the Company of any liability or unlawful conduct of any kind. You agree that the Severance Benefits being offered
in exchange for your release of claims and rights is sufficient. You agree to cooperate on behalf of the Company, as appropriate
and lawful, in future legal actions relating to your employment with the Company.


 


You
and the Company agree not to disparage each other or to do anything that portrays either you or the Company, or the Company’s,
services, products or personnel in a negative light or that might injure you or the Company’s business or affairs. This
would include, but is not limited to, disparaging remarks about either you or the Company, as well as the Company’s shareholders,
officers, directors, employees, agents, advisors, partners, affiliates, consultants, products, formulae, business processes, corporate
structure or organization, and marketing methods. This does not however prevent you or the Company from communicating any concerns
about potential violations of law, rule or regulation to the Securities and Exchange Commission or any other government authority
or self-regulatory agency (each an “Agency” and collectively, “Agencies”),
prohibit you or the Company from discussing any such matters with any Agency, or prohibit any truthful affirmation or testimony
in compliance to any request, subpoena, or inquiry by the government or regulatory agency.


 


You
agree to keep confidential any and all non-public information about the business or finances of the Company, including, without
limitation, all information about (or relating to) any products, services, technology, business plans, litigation, financial statements,
projections, existing or proposed projects, suppliers, customers, merchant lists, pricing, purchase records, sale records, marketing,
processes, equipment, facilities, data, methodologies or trade secrets, in whatever form (collectively “Information”,
which Information shall encompass the Company’s Information and/or any Information of any Affiliate of the Company, subsidiary
of the Company or party who has contracted with or proposed to contract with the Company, from whatever source shall be deemed
confidential and shall be collectively referred to in this Agreement as “Confidential Information”.
Notwithstanding the foregoing, the term “Confidential Information” shall not include information which
(a) is independently developed by you otherwise than in connection with your employment; (b) becomes publicly available without
violation of this Agreement or by any fault of you or any other party subject to confidentiality rights with the Company; (c)
becomes lawfully available in the “public domain” from a third party; (d) is approved for disclosure
by written authorization of the Company; or (e) which you are compelled to disclose pursuant to applicable law or court order,
provided that you give the Company prompt notification of such requested disclosure.


 


“Person”
means any natural person, corporation, general partnership, limited partnership, limited liability company, limited liability
partnership, proprietorship, business or statutory trust, trust, union, association, instrumentality, governmental authority or
other entity, enterprise, authority, unincorporated organization or business organization. An “Affiliate”
of a specified Person means any other Person that (at the time when the determination is made) directly, or indirectly through
one or more intermediaries, controls, or is controlled by, or is under common control with, such specified Person. As used in
the foregoing sentence, the term “control” (including, with correlative meaning, the terms “controlling,”
“controlled by” and “under common control with”) means the power to direct
the management and/or the policies of a Person, directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise.


 






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You
further agree that you will not at any time (i) use any Confidential Information for any other purpose other than as agreed to
by the Company in writing, or (ii) discuss, disclose or otherwise transfer any Confidential Information to any Person. The requirements
of this paragraph shall survive the termination of this Agreement.


 


You
agree that, if you violate the terms of this Agreement, you will reimburse the Released Parties for any reasonable and necessary
attorneys’ fees, costs, or other damages arising from your breach of the Agreement, unless you are challenging your waiver
of claims under the Age Discrimination in Employment Act. You agree that, if any portion of this Agreement is found to be unenforceable,
the remainder of the Agreement will remain enforceable.


 


Before
signing this Agreement, you should make sure that you understand what you are signing, what benefits you are receiving, and what
rights you are giving up, including your rights under the Age Discrimination in Employment Act. You are also encouraged to consult
an attorney about the contents and meaning of this Agreement.


 


You
shall have up to twenty-one (21) days from the date of your receipt of this Agreement, which receipt occurred on May 24, 2018,
to consider the terms and conditions of this Agreement (the “Review Period”). You may accept this Agreement
at any time within the Review Period by executing it and returning it to Camber Energy, Inc., Attn: Bob Schleizer, Chief Financial
Officer, c/o BlackBriar Advisors LLC, 3131 McKinney Ave., Suite 600, Dallas, TX 75204, or via email at bschleizer@blackbriaradvisors.com,
no later than 5:00 p.m. (Central) on the twenty-first (21st) day after your receipt of this Agreement. Thereafter, you will have
seven (7) days to revoke this Agreement (the “Revocation Period”) by stating your desire to do so in
writing to Bob Schleizer at the address listed above, no later than 5:00 p.m. (Central) on the seventh (7th) day following
the date you sign this Agreement. The effective date of this Agreement shall be the eighth (8th) day following your
signing and acceptance of this Agreement (the “Effective Date”), provided you do not revoke the Agreement
during the Revocation Period. In the event you do not accept this Agreement as set forth above, or in the event you revoke this
Agreement during the Revocation Period, this Agreement, including but not limited to the obligation of the Company and its subsidiaries
and affiliates to provide the consideration provided above shall automatically be deemed null and void and any Severance Benefits
offered or provided hereunder shall be immediately withdrawn and be deemed null, void and terminated. Furthermore, you shall immediately
return any Severance Benefits paid by the Company prior to such revocation.


 


By
signing this Agreement, you also agree, following the Separation Date, to cooperate fully with the Company upon request in all
matters relating to the completion of your pending work on behalf of the Company and in connection with the orderly transition
of such work to such other employees as the Company may designate. You further agree that following the Separation Date you will
cooperate fully with the Company upon request as to any and all claims, controversies, disputes, or complaints of which you have
any knowledge or that may relate to you or your employment with the Company, unless you are an adverse party. The Company will
reimburse you for any reasonable out-of-pocket expenses incurred pursuant to your duties under this Paragraph, after the Separation
Date, which are pre-approved in writing by the Company. Such cooperation includes but is not limited to providing the Company
with all information known to you related to such claims, controversies, disputes, or complaints and appearing and giving testimony
in any forum.


 






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If
this Agreement fully and accurately describes the complete agreement concerning your separation of employment and your agreement
to release the Released Parties for any acts occurring prior to the date you sign this Agreement (and supersedes all previous
oral or written communications, representations or agreements), please confirm this agreement by signing and dating this Agreement.
By signing this Agreement, you agree that your waiver of rights and claims is knowing and voluntary. You further confirm that
you fully understand the benefits you are receiving and the rights and claims you are waiving under this Agreement and that you
have accepted those benefits and waived those rights and claims of your own free will.


 


This
Agreement shall be governed exclusively by and construed exclusively in accordance with the laws of the state of Texas, without
giving effect to the conflict of law principles of state of Texas. In the event of a dispute arising out of or related to this
Agreement, the parties agree that venue lies in a court of competent jurisdiction in Bexar County, Texas.


 


In
the event of a dispute between the parties arising out of or related to this Agreement, the parties shall submit the dispute to
mediation, which shall occur within thirty (30) days unless otherwise agreed by the parties. If the
matter is not resolved at mediation, the matter may be submitted for arbitration by the American Arbitration Association or such
other arbiter as the parties may agree upon. In the event of an arbitration, the matter shall be conducted under the Commercial
Arbitration Rules of the American Arbitration Association and the Expedited Procedures contained therein, promulgated on October
1, 2013. The prevailing party(ies) shall be entitled to recover their reasonable and necessary attorney’s fees and costs
as the arbitrator shall determine.


 


This
Agreement shall be binding upon the parties hereto and upon their heirs, administrators, representatives, executors, successors,
offspring, spouse and assigns, and shall inure to the benefit of said parties and each of them and to their heirs, administrators,
representatives, executors, successors and assigns.


 


Should
any provision of this Agreement be declared or be determined by any court of competent jurisdiction to be illegal, invalid or
unenforceable, the legality, validity and enforceability of the remaining parts, terms or provisions shall not be effected thereby,
and said illegal, unenforceable or invalid part, term or provision shall be deemed not to be a part of this Agreement.


 


You
further agree that if you disavow or challenge in court this Agreement, and if this Agreement is deemed unenforceable by a court
of competent jurisdiction as the result of your actions, all Severance Benefits offered to you or provided to you hereunder shall
be withdrawn and be deemed null, void and terminated immediately upon the entry of the final court order.


 


This
Agreement sets forth the entire Agreement between the parties hereto and fully supersedes any and all prior agreements or understandings,
written or oral between the parties hereto pertaining to your separation from employment with the Company.


 


This
Agreement shall be interpreted in accordance with the plain meaning of its terms and not strictly for or against any of the parties
hereto.


 


This
Agreement may be signed in counterparts, and each counterpart shall be considered an original agreement for all purposes.


 


This
Separation and Release Agreement was given to Richard N. Azar II on May 25, 2018. You will have until June 15, 2018
to sign and deliver this Separation and Release Agreement.


 


ACCEPTED
AND AGREED TO:


 





	 /s/ Richard
N. Azar II	 	Date
    _5-25-2018________






Richard
N. Azar II 


 






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	CAMBER ENERGY, INC.	 	 
	 	 	 
	 /s/ Bob Schleizer	 	Date
    __5/25/2018______
	Bob Schleizer	 	 
	Chief Executive Officer	 	 







 






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