EMPLOYEE SEPARATION AND RELEASE
Exhibit
10.2
This
Employee Separation and Release (this “Agreement”)
confirms the terms of your separation from employment with PEDEVCO
Corp. (d/b/a/ Pacific Energy Development) (the “Company”)
and Insperity PEO Services, L.P. (“Insperity”).
You agree that effective as of 5:00
PM (Pacific) on May 31, 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. 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.
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 will pay you a lump sum severance payment
equal to $20,000.00, less all applicable withholdings and required
deductions, which will be paid to you within ten days following the
effectiveness of this Agreement (the “Severance
Payment”).
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. You agree that the additional benefits offered
to you under this Agreement are due solely from the Company and
that Insperity has no obligation to pay any additional
compensation.
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 their 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, Insperity and their 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, 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 California Fair Employment and Housing 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 California Labor Code, the California
Business and Professions 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
and Insperity. 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.
1
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. In addition, you expressly waive and release any and all
rights and benefits under Section 1542 of the Civil Code of the
State of California (or any analogous law of any other state),
which reads 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.”
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
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. In
addition, nothing in this Agreement shall limit or waive any rights
to indemnification you have, or Company obligations to you,
pursuant to that certain Indemnification Agreement, dated September
10, 2013, entered into by and between you and the Company, which
agreement shall continue in full force and effect in accordance
with its terms.
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.
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.
2
“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.
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 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 forty-five (45) days from the date of your receipt
of this Agreement, which receipt occurred on May 10, 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
PEDEVCO Corp., Attn: Xxxxx X. Xxxxx, 0000 Xxxxxxxxx Xxxxx Xxxxxx,
Xxxxx 000, Xxxxxxxx, XX 00000, or email at xxxxxx@xxxxxxxxxxxxxxxxxxxxxxxx.xxx,
no later than 5:00 p.m. (Pacific) on the forty-fifth
(45th) 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
Xxxxx X. Xxxxx at the address listed above, no later than 5:00 p.m.
(Pacific) 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.
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.
3
This
Agreement shall be governed exclusively by and construed
exclusively in accordance with the laws of the state of California,
without giving effect to the conflict of law principles of state of
California. In the event of a dispute concerning this Agreement,
the parties agree that venue lies in a court of competent
jurisdiction in Contra Costa County, California.
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, 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.
4
This
Employee Separation and Release was given to Xxxxxxx Xxxxxxxx on
May 10, 2018. You will have
until June 24, 2018 to sign
and deliver this Employee Separation and Release
Agreement.
ACCEPTED AND AGREED TO:
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/s/ Xxxxxxx X.
Xxxxxxxx
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May 10, 2018
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Xxxxxxx X.
Xxxxxxxx
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Date
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/s/ Xxxxx X.
Xxxxxxxxxx
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May 10, 2018
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Xxxxx X.
Xxxxxxxxxx
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Date
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Chairman
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