Unassociated Document


    
      EXHIBIT
        10.9

       

      FORTUNE
        OIL & GAS, INC.

      Employment
        Agreement

      


      This
        Employment Agreement (“Agreement”) is made and effective the 1st day of January
        2005 by and between Fortune Oil & Gas, Inc., a Nevada corporation (the
“Company”), and David Nunn (“Executive”).

       

      RECITALS

      


      WHEREAS,
        Executive has the experience to provide services to the Company of an
        extraordinary character which gives such services a unique value:
        and

      


      Whereas
        the Company desires to retain the services of Executive, and Executive desires
        to be employed by the Company for the term of this Agreement.

      


      NOW
        AND THEREFORE, the
        Company and Executive, intending to be legally bound, herby agree as
        follows:

      


      1.
        Employment.
        The
        Company hereby employs Executive as the President of the Company. For the
        term
        of Executive’s employment, and upon the other conditions set forth in this
        Agreement, Executive accepts such employment and agrees to perform services
        for
        the Company, subject always to such resolutions as are established from time
        to
        time by the Board of Directors of the Company.

      


      2.
        Term.
        The
        term
        of Executive’s employment hereunder shall commence on the effective date of this
        Agreement and continue through December 31,
        2014
        subject
        to the termination provisions contained herein. The Agreement may be terminated
        by the Company only for cause as set forth below, and shall not constitute
“at
        will” employment. 

      


      3.
        Position
        and Duties.

       

      3.1
        Services
        with the Company.
        During
        the term of this Agreement, Executive agrees to perform such duties and exercise
        such powers related thereto as may from time to time be assigned to him by
        the
        Company’s Board of Directors (the “Board”). Executive shall duly and diligently
        perform all duties assigned to him while in the employ if the Company. He
        shall
        be bound by and faithfully observe and abide by all rules and regulations
        of the
        Company which are brought to his notice or of which he should be reasonably
        aware.

      


      3.2
        No
        Conflicting Duties.
        Executive
        shall devote sufficient productive time, ability, and attention to the business
        of the Company during the term of this Agreement in a manner that will serve
        the
        best interests of the Company. During the term hereof, Executive shall not
        serve
        as an officer, director, employee, consultant or advisor to any other business
        without the prior written consent of the Company’s Board, which shall not be
        unreasonably withheld. Executive hereby confirms he is under no contractual
        commitments inconsistent with his obligations set forth in this Agreement.
        This
        Agreement shall not be interpreted to prohibit Executive from making passive
        interfere with the services required under this Agreement.    

       

      
        
          
          

        

        
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          4.
            Compensation.

        

         

      

      4.1
        Annual
        Salary.
        As
        compensation for all services to be rendered by Executive under this Agreement,
        the Company shall pay to Executive an annual salary of three
        hundred and sixty thousand dollars ($360,000.00)
        (the
“Annual Salary”). Executive’s Annual Salary shall be paid on a regular basis in
        accordance with the Company’s normal payroll procedures and policies. On or
        before the yearly anniversary date of this Agreement, the Board of Directors
        shall determine the increase to the Annual Salary, but in no event shall
        it be
        less than seven
        percent
(7%).
        The
        adjusted Annual Salary shall become effective on or before the yearly
        anniversary date. In addition, Executive shall be entitled to receive cash
        and
        or stock bonuses as may be awarded by the Board of Directors from time to
        time.

      


      4.2 Incentive
        Stock Options.
        The
        Company shall issue incentive stock options to Executive pursuant to the
        Company’s qualified Incentive Stock Option Plan. Upon the execution of this
        Agreement, Executive will receive one million four hundred thousand (1,400,000)
        incentive stock options at an exercise price equal to the fair market value
        at
        the date of grant, but in no event shall the total value exceed $100,000.
        The
        Incentive Stock Options shall vest immediately and shall the terminate ten
        years
        from the date of grant. Executive may exercise the incentive stock options,
        at
        his sole and absolute discretion, by providing the Company with written notice
        accompanied by (1) cash or a cashier’s check an amount equal to the product of
        the incentive stock options exercise price and the number of shares Executive
        desires to purchase pursuant to this provision, or (2) by a cashless exercise
        whereby Executive receives the net amount of shares after deducting the value
        of
        the exercise price.

       

       4.3
        Stock
        and Option Registration Rights.
        The
        Company hereby agrees to use its best efforts to register any shares or any
        securities in which the underlying shares are common stock with the Securities
        and Exchange Commission on Form S-8 for which the securities were issued
        as a
        form of compensation.

       

      4.4
        Expenses.
        The
        Company shall reimburse Executive for all reasonable business or travel expenses
        and office related expenses incurred by Executive in the performance of his
        duties: including but not limited to: airfare, automobile rental, lodging,
        meals, telephone, copy costs, and supplies.

       

      4.5
        Business
        Travel.
        The
        Company and Executive recognize that it may periodically be necessary for
        Executive to travel on behalf of the Company. The Company will pay for Executive
        to travel in business class or better.

      


      4.6
        Annual
        Vacation.
        Executive
        shall be entitled to forty
        five (45) days
        vacation time each year without loss of compensation. In the event that the
        Executive is unable for any reason to take the total amount of vacation time
        authorized herein during any year, any unused vacation time shall carry over
        from year to year. Any earned but unused vacation time will be paid to Executive
        based upon his annual rate of all compensation paid in the previous twelve
        months upon termination or expiration of this Agreement.

       

       4.7
        Sick
        Leave.
        Executive
        shall be entitled to forty
        five (45)
        days
        sick leave each year without loss of compensation. Any earned but unused
        sick
        leave will be paid to Executive based upon his annual rate of all compensation
        paid in the previous twelve months upon termination or expiration of this
        Agreement. 

       

      4.8
        Health
        Insurance.
        The
        Company shall provide Executive and his immediate family members with extensive
        health insurance that shall cover medical, dental and vision.

       

      
        
          
          

        

        
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      4.9
        Payment
        Upon Sale or Merger of Company.
        In
        the
        event the Company shall merge, sell a controlling interest, or sell a majority
        of its assets, the Company shall pay Executive three (3) times his annual
        salary
        then in effect. Further, as to any vested but unexercised options to purchase
        shares in the Company which are held by Executive at the earlier of (1) the
        Company’s execution of a Letter of Intent to (a) merge, (b) sell a controlling
        interest, or (c) sell a majority of its assets, or (2) the date of any such
        merger or sale is consummated, the Company shall pay Executive cash in the
        amount equal to the difference between the consideration paid to the Company
        on
        a per share basis less the exercise price of the option, the value of which
        is
        multiplied to the number of options which Executive holds.

      


      5.
        Compensation
        Upon the Termination of Executive’s Employment.

       

      5.1
        In
        the
        event this Agreement is terminated prior to its expiration for any reason,
        Executive shall be entitled to receive Executive’s then current Base Salary, any
        and all accrued, earned but unpaid bonuses or benefits described in Section
        4 of
        this Agreement. Further, Executive shall retain all rights to shares and
        vested
        stock options, and all other equity rights that may be granted to Executive
        from
        time to time. The benefits provided for in this provision are exclusive of
        any
        other rights or remedies which Executive would posses in the event the Company
        terminates the Agreement without cause. The Company agrees that in the event
        it
        terminates Executive’s employment without cause, Executive retains all rights
        and remedies available under the law and the Company will not urge or otherwise
        argue or assert in any legal, including judicial or arbitration, proceeding
        that
        any provision of this Agreement as constitutes a waiver of rights by
        Executive.

      


      5.2
        In
        the
        event that Executive’s employment is terminated pursuant to section 9.2,
        Executive’s beneficiary or beneficiary designated by Executive in writing to the
        Company, or in the absence of such beneficiary, Executive’s estate, shall be
        entitles to receive Executive’s then current Base Salary for one
        (1)
        year
        after
        the date of his death.

      


      6.
        Proprietary
        Matter.
        Except
        as
        permitted or directed by the Company, Executive shall not during the term
        of his
        employment or at any time thereafter divulge, furnish, disclose, or make
        accessible (other then in the ordinary course of the business of the Company)
        to
        anyone for use in any way confidential, secret, or proprietary knowledge
        or
        information of the Company (“Proprietary Matter”) which Executive has acquired
        or become acquainted with or will acquire or become acquainted with, whether
        developed by himself or by others, including, but not limited to, any trade
        secrets, confidential or secret designs, processes, formulae, software or
        computer programs, plans, devices or material (whether or not patented or
        patentable, copyrighted or copyrightable) directly or indirectly useful in
        any
        aspect of the business of the Company, any confidential customer, distributor
        or
        supplier lists of the Company, any confidential or secret development or
        research work of the Company, or any other confidential, secret or non- public
        aspects of the business of the Company. Executive acknowledges that the
        Proprietary Matter constitutes a unique and valuable asset of the Company
        acquired at great time and expense by the Company, and that any disclosure
        or
        other use of the Proprietary Matter other than for the sole benefit of the
        Company would be wrongful and would cause irreparable harm to the Company.
        Both
        during and after the term of this Agreement, Executive will refrain from
        any
        acts or omissions that would reduce the value of Proprietary Matter to the
        Company. The foregoing obligations of confidentiality, however, shall not
        apply
        to any knowledge or information which is now published or which subsequently
        becomes generally publicly known, other than as a direct or indirect result
        of
        the breach of this Agreement by Executive nor shall it apply to any knowledge
        or
        information Executive had prior to the execution of this Agreement.

      


      
        
          
          

        

        
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      7.
        Ventures.
        If,
        during the term of this Agreement, Executive is engaged in or associated
        with
        the planning or implementing of any project, program, or venture involving
        the
        Company and a third party or parties, all rights in the project, program,
        or
        venture shall belong to the Company and shall constitute a corporate opportunity
        belonging exclusively to the Company. Except as provided in Section 4.4 above,
        Executive shall not be entitled to any interest in such project, program,
        or
        venture or to any commission, finder’s fee or other compensation in connection
        therewith.

      


      8. Non
        Solicitation of Employees.
        During
        Executive’s employment by the Company hereunder and for the one (1) year period
        following the termination of such employment for any reason, Executive shall
        not, either directly or indirectly, on his own behalf or in the service or
        on
        behalf of others solicit, divert or hire away, or attempt to solicit, divert
        or
        hire away any person then employed full time by the Company.

      


      
        	 	
                9.

              	
                Termination
                  Prior to Expiration of the
                  Term

              


      

       

      9.1
        Disability
        Executive’s employment shall terminate upon Executive becoming totally or
        permanently disabled for a period of three years or more. For purposes of
        this
        Agreement, the term “totally or permanently disabled” or “total or permanent
        disability” means Executive’s inability on account of sickness or accident,
        whether or not job related, to engage in regularly or to perform adequately
        his
        assigned duties under this Agreement. Prior to terminating the Agreement
        pursuant to this provision, the Company shall engage and consult one or more
        physicians as may be reasonable.

       

      9.2
        Death
        of Executive.
        Executive’s employment shall terminate immediately upon the death of
        Executive.

       

      9.3
        Termination
        for Cause.
        The
        Company may only terminate Executive’s employment for “Cause” (as hereinafter
        defined). Further, no termination for “Cause” may be invoked by Company without
        first providing Executive with at least thirty (30) days written notice
and
        one
        hundred twenty (120) days
        to
        correct any breach, default or causation. Such written notice shall set forth
        with reasonable specificity the Company’s basis for such notice of termination
        and Executive shall have thirty (30) days to correct the condition set forth
        in
        the notice.

      


      9.3.1.
        Cause
        Defined.
        For the
        purpose of this section, the termination of this Agreement by Company for
        any of
        the following reasons shall be considered termination for Cause:

      


      
        	 	
                (i)

              	
                Commission
                  of a criminal act involving fraud, embezzlement or breach of trust
                  or
                  other act which would prohibit Executive from holding his position
                  under
                  the rules of the Securities and Exchange
                  Commission.

              


      

      


      
        	 	
                (ii)

              	
                Willful,
                  knowing and malicious violation of written corporate policy or
                  rules of
                  the Company

              


      

      


      
        	 	
                (iii)

              	
                Willful,
                  knowing and malicious misuse, misappropriation, or disclosure of
                  any of
                  the Proprietary Matters.

              


      

      


      
        	 	
                (iv)

              	
                Misappropriation,
                  concealment, or conversion of any money or property of the
                  Company.

              


      

      


      
        	 	
                (v)

              	
                Being
                  under the habitual influence of intoxicating liquors or controlled
                  substances while in the course of
                  employment.

              


      

      


      
        
          
          

        

        
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                (vi)

              	
                Intentional
                  and non-trivial damage or destruction of property of the Company.
                  For
                  purposes of this provision non-trivial is defined to mean damage
                  occurring
                  in the course of a single act or occurrence in an amount exceeding
                  four
                  hundred dollars.

              


      

      


      
        	 	
                (vii)

              	
                Reckless
                  and wanton conduct which endangers the safety of other persons
                  or property
                  during the course of employment or while on premises leased or
                  owned by
                  the Company.

              


      

      


      
        	 	
                (viii)

              	
                The
                  performance of duties in a habitually unsatisfactory manner after
                  being
                  repeatedly advised in writing by the Company of such unsatisfactory
                  performance.

              


      

      


      
        	 	
                (ix)

              	
                Continued
                  incapacity on the part of Executive to perform his duties, unless
                  waived
                  by the Company

              


      

       

      
        9.4
          Surrender
          of Records and Property.
          Upon
          termination of his employment with the Company, Executive shall deliver
          promptly
          to the Company all records, electronic media, manuals, books, blank forms,
          documents, letters, memoranda, notes, notebooks, reports, data, tables,
          and
          calculations or copies thereof, which are the property of the Company and
          which
          relate in any way to the business, products, practices or techniques of
          the
          Company, and all other property (keys, office equipment, computers, mobile
          phones, credit cards, etc.) of the Company and Proprietary Matter, including
          but
          not limited to, all documents which in whole or in part contain any trade
          secrets or confidential information of the Company, which in any of these
          cases
          are in his possession or under his control.

      

      


      10.
        Assignment.
        This
        Agreement shall not be assignable, in whole or in part, by either party without
        the written consent of the other party, except that the Company may, without
        the
        consent of Executive, assign its rights and obligations under this Agreement
        to
        any corporation, firm or other business entity (i) with or into which the
        Company may merge or consolidate, or (ii) to which the Company may sell or
        transfer all or substantially all of its assets or of which fifty percent
        (50%)
        or more of the equity investment and of the voting control is owned, directly
        or
        indirectly, by, or is under common ownership with, the Company. Upon such
        assignment by the Company, the Company shall obtain the assignees’ written
        agreement enforceable by Executive to assume and perform, and after the date
        of
        such assignment, the terms, conditions, and provisions imposed by this Agreement
        upon the Company. After any such assignment by the Company and such written
        agreement by the assignee, the Company shall be discharged from all further
        liability hereunder and such assignee shall thereafter be deemed to be the
        Company for the purposes of all provisions of this Agreement including this
        section.

      


      11.
        Indemnification.
        The
        Company shall indemnify Executive as provided in the Nevada General Corporations
        Code, Company’s Charter or Bylaws in effect at the commencement of this
        Agreement. The scope of indemnification to which Executive is entitled shall
        not
        be diminished, but may be expanded by the Company, by amendment of the Company’s
        Bylaws, Articles of Incorporation or otherwise. Executive shall indemnify
        and
        hold the Company harmless from all liability for loss, damages or injury
        resulting from the negligence or misconduct of Executive.

      


      
        	 	
                12.

              	
                Miscellaneous

              


      

       

      12.1
        Governing
        Law.
        This
        Agreement is made under and shall be government by and construed in accordance
        with the laws of the State of California.

      


      
        
          
          

        

        
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      12.2
        Entire
        Agreement.
        This
        Agreement contains the entire agreement of the parties relating to the subject
        matter hereof and supersedes all prior agreements and understandings with
        respect to such subject matter, and the parties hereto have made no agreements,
        representations or warranties relating to the subject matter of this Agreement
        which are not set forth herein.

      


       12.3
        Legal
        Proceedings.
        Should
        any party institute or should the parties otherwise become a party to any
        action
        or proceeding to enforce or interpret this Agreement, the prevailing party
        in
        any such action or proceeding shall be entitled to receive from the
        non-prevailing party all costs and expenses of prosecuting or defending the
        action or proceeding. This Agreement and the rights of each party under this
        Agreement shall be governed by, interpreted under, and construed and enforced
        in
        accordance with the laws of the State of California.

      


       12.4
        Withholding
        Taxes.
        The
        Company may withhold from any benefits payable under this Agreement all federal,
        state, city or other taxes as shall be required pursuant to any law or
        governmental regulation or ruling.

      


       12.5
        Amendments.
        No
        amendment or modification of this Agreement shall be deemed effective unless
        made in writing signed by the parties hereto.

      


       12.6
        No
        Waiver.
        No term
        or condition of this Agreement shall be deemed to have been waived nor shall
        there be any estoppel to enforce any provisions of this Agreement, except
        by a
        statement in writing signed by the party against whom enforcement of the
        waiver
        or estoppel is sought. Any written waiver shall not be deemed a continuing
        waiver unless specifically stated, shall operate only as to the specific
        term or
        condition waived and shall not constitute a waiver of such term or condition
        for
        the future or as to any act other than that specifically waived.

      


       12.7
        Severability.
        To
        the
        extent any provision of this Agreement shall be invalid or unenforceable,
        it
        shall be considered deleted here from and the remainder of such provision
        and of
        this Agreement shall be unaffected and shall continue in full force and
        effect.

      


       12.8
        Notices.
        Any and
        all notices, requests or other communications required or permitted in or
        by any
        provision of this Agreement shall be in writing and may be delivered personally
        or by certified mail directed to the addressee at such person’s or entity’s last
        known post office address, and if given by certified mail, shall be deemed
        to
        have been delivered when deposited in such, mail postage prepaid.

       

      
        
          
          

        

        
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        This Agreement
        is executed on the date first written above at Los Angeles,
        California.

       

      
        	Company:                                        	 	 	Executive:
	Fortune Oil & Gas,
                Inc.	 	 	 
	 	 	 	 
	/s/ James
                Wensveen	 	 	/s/ David
                Nunn
	
                

              	 	 	
                

              
	James
                Wensveen, CEO	 	 	David
                Nunn


      

       

      
        	Approved
                and Ratified by Executive Board Member	 	 	 
	 	 	 	 
	/s/ James
                Wensveen	 	 	 
	
                

              	 	 	
              
	James
                Wensveen	 	 	 


      

    

     

     

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