CONSULTING AGREEMENT
Exhibit 10.2
This
Agreement is made and entered into, as of January 1, 2019
(“Effective
Date”), by and between PEDEVCO Corp., a Texas
corporation (“Company”), having a principal
place of business at 0000 Xxxx Xxxxxx Xxxx Xx., Xxxxx 000, Xxxxxxx,
Xxxxx 00000 and Xxxxxxx Xxxxxxxxxxx, a(n) X individual,
partnership, limited liability partnership,
corporation, limited liability company (check the
appropriate box) of the State of California, having a principal
place of business at 000 Xxxxxx Xxxxx, Xxx Xxxxx, XX 00000
(“Consultant”).
1. Engagement
of Services. Company engages
Consultant to provide the services set forth on Schedule A attached
hereto. Schedule A can be amended
from time to time should the scope of services change at any
time.
2. Compensation;
Timing. Company will pay
Consultant the fee set forth on Schedule A. Company will
reimburse Consultant’s expenses which have been approved
beforehand in writing by Company (email acceptable) no later than
thirty (30) days after Company’s receipt of
Consultant’s invoice, provided that reimbursement for
expenses may be delayed until such time as Consultant has furnished
reasonable documentation for authorized expenses as Company may
reasonably request. Upon termination of this Agreement for any
reason, Consultant will be (a) paid fees on the basis stated on
Schedule A and
(b) reimbursed only for expenses that are incurred pursuant to this
Section 2 prior to termination of this
Agreement.
3. Independent
Contractor Relationship.
(a) Consultant’s
relationship with Company is that of an independent contractor, and
nothing in this Agreement is intended to, or shall be construed to,
create a partnership, agency, joint venture, employment or similar
relationship. Consultant will not be entitled to any of the
benefits that Company may make available to its employees,
including, but not limited to, group health or life insurance,
profit-sharing or retirement benefits, vacation days, sick days, or
holidays. Consultant is not authorized to make any representation,
contract or commitment on behalf of Company unless specifically
requested or authorized in writing to do so by a Company manager.
Consultant is solely responsible for, and will file, on a timely
basis, all tax returns and payments required to be filed with, or
made to, any federal, state or local tax authority with respect to
the performance of services and receipt of fees under this
Agreement. Consultant is solely responsible for, and must maintain
adequate records of, expenses incurred in the course of performing
services under this Agreement. No part of Consultant’s
compensation will be subject to withholding by Company for the
payment of any social security, federal, state or any other
employee payroll taxes. Consultant is solely responsible for and
assumes full responsibility for (as applicable) the payment of
FICA, FUTA and income taxes and compliance with any other
international, federal, state, or local laws, rules and
regulations. Company will regularly report amounts paid to
Consultant by filing Form 1099-MISC with the Internal Revenue
Service as required by law.
(b) Company understands
and agrees that Consultant shall render services in whatever manner
deemed appropriate by Consultant. During the term of this
Agreement, Consultant agrees to perform the services on a
professional best-efforts basis, in accordance with all applicable
laws and regulations and in accordance with the highest applicable
industry standards.
(c) Company shall not
control or direct, nor shall the Company have any right to control
or direct, the result of or the details, methods, manner or means
by which Consultant performs his or her business or services,
except that Consultant shall coordinate services with the Company,
shall provide services in accordance with generally accepted
industry standards and in compliance with all international,
federal, state, and local laws.
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(d) Consultant has and
will at all times retain the exclusive right to control and direct
the method, details, and means of performing the services under
this Agreement. Company shall not specify the amount of time
required to perform individual aspects of the services.
Consultant’s services are not exclusive to the Company, and
Consultant may render services for other business
entities.
(a) Definitions.
“Innovations”
means all discoveries, designs, developments, improvements,
inventions (whether or not protectable under patent laws), works of
authorship, information fixed in any tangible medium of expression
(whether or not protectable under copyright laws), trade secrets,
know-how, ideas (whether or not protectable under trade secret
laws), mask works, trademarks, service marks, trade names and trade
dress. “Company
Innovations” means Innovations that Consultant, solely
or jointly with others, conceives, develops or reduces to practice
related to this Agreement.
(b) Disclosure
and Assignment of Company Innovations. Consultant agrees
that all Company Innovations belong to and shall remain the sole
and exclusive property of the Company forever. Consultant agrees to
maintain adequate and current records of all Company Innovations,
which records shall be and remain the property of Company.
Consultant agrees to promptly disclose and describe to Company all
Company Innovations. Consultant hereby does and will assign to
Company or Company’s designee all of Consultant’s
right, title and interest in and to any and all Company Innovations
and all associated records. To the extent any of the rights, title
and interest in and to Company Innovations cannot be assigned by
Consultant to Company, Consultant hereby grants to Company an
exclusive, royalty-free, transferable, irrevocable, worldwide
license (with rights to sublicense through multiple tiers of
sublicensees) to practice such non-assignable rights, title and
interest. To the extent any of the rights, title and interest in
and to the Company Innovations can neither be assigned nor licensed
by Consultant to Company, Consultant hereby irrevocably waives and
agrees never to assert such non-assignable and non-licensable
rights, title and interest against Company or any of
Company’s successors in interest.
(c) Assistance.
Consultant agrees to perform, during and after the term of this
Agreement, all acts that Company deems necessary or desirable to
permit and assist Company, at its expense, in obtaining, perfecting
and enforcing the full benefits, enjoyment, rights and title
throughout the world in the Company Innovations as provided to
Company under this Agreement. If Company is unable for any reason
to secure Consultant’s signature to any document required to
file, prosecute, register or memorialize the assignment of any
rights under any Company Innovations as provided under this
Agreement, Consultant hereby irrevocably designates and appoints
Company and Company’s duly authorized officers and agents as
Consultant’s agents and attorneys-in-fact to act for and on
Consultant’s behalf and instead of Consultant to take all
lawfully permitted acts to further the filing, prosecution,
registration, memorialization of assignment, issuance and
enforcement of rights under such Company Innovations, all with the
same legal force and effect as if executed by Consultant. The
foregoing is deemed a power coupled with an interest and is
irrevocable.
(d) Out-of-Scope Innovations. If
Consultant incorporates or permits to be incorporated any
Innovations relating in any way, at the time of conception,
reduction to practice, creation, derivation, development or making
of such Innovation, to Company’s business or actual or
demonstrably anticipated research or development but which were
conceived, reduced to practice, created, derived, developed or made
by Consultant (solely or jointly) either unrelated to
Consultant’s work for Company under this Agreement or prior
to the Effective Date (collectively, the “Out-of-Scope Innovations”) into
any of the Company Innovations, then Consultant hereby grants to
Company and Company’s designees a non-exclusive,
royalty-free, irrevocable, worldwide, fully paid-up license (with
rights to sublicense through multiple tiers of sublicensees) to
practice all patent, copyright, moral right, mask work, trade
secret and other intellectual property rights relating to such
Out-of-Scope Innovations. Notwithstanding the foregoing, Consultant
agrees that Consultant will not incorporate, or permit to be
incorporated, any Innovations conceived, reduced to practice,
created, derived, developed or made by others or any Out-of-Scope
Innovations into any Company Innovations without Company’s
prior written consent.
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(e) Assignment
by Employees of Consultant. Consultant
covenants, represents and warrants that each of Consultant’s
employees who perform services under this Agreement has or will
have a written agreement with Consultant that provides Consultant
with all necessary rights to fulfill its obligations under this
Agreement, including but not limited to the obligations of this
Section 4.
(a) Definition
of Confidential Information.
“Confidential
Information” means (a) any technical and non-technical
information related to Company’s business and current, future
and proposed products and services of Company, including for
example and without limitation, Company Innovations, Company
Property (as defined in Section 5(d)), and Company’s
information concerning research, development, design details and
specifications, financial information, procurement requirements,
engineering and manufacturing information, customer lists, business
forecasts, sales information and marketing plans and (b) any
information that may be made known to Consultant and that Company
has received from others that Company is obligated to treat as
confidential or proprietary.
(b) Non-Disclosure and Nonuse
Obligations. During
Consultant's independent contractor relationship under this
Agreement, Company shall provide to Consultant Confidential
Information. In exchange for the Company's promise to provide
Consultant with Confidential Information, and except as permitted
in this Section 5(b), Consultant shall not use,
disseminate or in any way disclose the Confidential Information.
Consultant may use the Confidential Information solely to perform
services pursuant to this Agreement for the benefit of Company.
Consultant shall treat all Confidential Information with the same
degree of care as Consultant accords to Consultant’s own
confidential information, but in no case shall Consultant use less
than reasonable care. If Consultant is not an individual,
Consultant shall disclose Confidential Information only to those of
Consultant’s employees who have a need to know such
information. Consultant certifies that each such employee will have
agreed, either as a condition of employment or in order to obtain
the Confidential Information, to be bound by terms and conditions
at least as protective as those terms and conditions applicable to
Consultant under this Agreement. Consultant shall immediately give
notice to Company of any unauthorized use or disclosure of the
Confidential Information. Consultant shall assist Company in
remedying any such unauthorized use or disclosure of the
Confidential Information. Consultant agrees not to communicate any
information to Company in violation of the proprietary rights of
any third party.
(c) Exclusions
from Non-Disclosure and Nonuse Obligations.
Consultant’s obligations under Section (b) shall not apply to any
Confidential Information that Consultant can demonstrate
(a) was in the public domain at or subsequent to the time such
Confidential Information was communicated to Consultant by Company
through no fault of Consultant; (b) was rightfully in
Consultant’s possession free of any obligation of confidence
at or subsequent to the time such Confidential Information was
communicated to Consultant by Company; or (c) was developed by
employees of Consultant independently of and without reference to
any Confidential Information communicated to Consultant by Company.
A disclosure of any Confidential Information by Consultant
(a) in response to a valid order by a court or other
governmental body or (b) as otherwise required by law shall
not be considered to be a breach of this Agreement or a waiver of
confidentiality for other purposes; provided, however, that
Consultant shall provide prompt prior written notice thereof to
Company to enable Company to seek a protective order or otherwise
prevent such disclosure.
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(d) Ownership and Return of Confidential
Information and Company Property. All Confidential
Information and any materials (including, without limitation,
documents, drawings, papers, diskettes, tapes, models, apparatus,
sketches, designs and lists) furnished to Consultant by Company,
whether delivered to Consultant by Company or made by Consultant in
the performance of services under this Agreement and whether or not
they contain or disclose Confidential Information (collectively,
the “Company
Property”), are the sole and exclusive property of
Company or Company’s suppliers or customers. Consultant
agrees to keep all Company Property at Consultant’s premises
unless otherwise permitted in writing by Company. Within five (5)
days after any request by Company, Consultant shall destroy or
deliver to Company, at Company’s option, (a) all Company
Property and (b) all materials in Consultant’s
possession or control that contain or disclose any Confidential
Information. Consultant will provide Company a written
certification of Consultant’s compliance with
Consultant’s obligations under this Section 5(d).
6. Indemnification.
Consultant will indemnify and hold harmless Company from and
against any and all third party claims, suits, actions, demands and
proceedings against Company and all losses, costs and liabilities
related thereto arising out of or related to (i) an allegation
that any item, material and other deliverable delivered by
Consultant under this Agreement infringes any intellectual property
rights or publicity rights of a third party or (ii) any
negligence by Consultant or any other act or omission of
Consultant, including without limitation any breach of this
Agreement by Consultant.
7. Observance
of Company Rules. At all times
while on Company’s premises, Consultant will observe
Company’s rules and regulations with respect to conduct,
health, safety and protection of persons and property.
8. No
Conflict of Interest. During the term
of this Agreement, Consultant will not accept work, enter into a
contract or accept an obligation inconsistent or incompatible with
Consultant’s obligations, or the scope of services to be
rendered for Company, under this Agreement. Consultant warrants
that, to the best of Consultant’s knowledge, there is no
other existing contract or duty on Consultant’s part that
conflicts with or is inconsistent with this Agreement. Consultant
agrees to indemnify Company from any and all loss or liability
incurred by reason of the alleged breach by Consultant of any
services agreement with any third party.
9. Defend
Trade Secrets Act. Pursuant to the
Defend Trade Secrets Act of 2016, if Consultant is an individual,
Consultant acknowledges that he/she shall not have criminal or
civil liability under any federal or state trade secret law for the
disclosure of a trade secret that (a) is made (i) in confidence to
a federal, state or local government official, either directly or
indirectly, or to an attorney; and (ii) solely for the purpose of
reporting or investigating a suspected violation of law; or (b) is
made in a complaint or other document filed in a lawsuit or other
proceeding, if such filing is made under seal. In addition, if
Consultant files a lawsuit for retaliation by Company for reporting
a suspected violation of law, Consultant may disclose the trade
secret to Consultant’s attorney and may use the trade secret
information in the court proceeding, if Consultant (x) files any
document containing the trade secret under seal; and (y) does not
disclose the trade secret, except pursuant to court
order.
10. Term
and Termination.
(a) Term.
This Agreement is effective as of the Effective Date set forth
above and will terminate on April 7, 2019 unless terminated earlier
as set forth below.
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(b) Termination
by Company. Company may
terminate this Agreement (a) immediately upon
Consultant’s breach of Sections 4, 5 or 11 or (b) immediately for
a material breach by Consultant if Consultant’s material
breach of any other provision under this Agreement is not cured
within ten (10) days after the date of Company’s written
notice of breach (email acceptable), or (c) immediately upon
Consultant’s revocation of that certain Separation and
General Release Agreement, dated December 31, 2018, entered into by
and between the Company and Consultant.
(c) Termination
by Consultant. Consultant may
terminate this Agreement without cause at any time, with
termination effective fifteen (15) days after Consultant’s
delivery to Company of written notice of termination (email
acceptable). Consultant also may terminate this Agreement
immediately for a material breach by Company if Company’s
material breach of any provision of this Agreement is not cured
within ten (10) days after the date of Consultant’s written
notice of breach (email acceptable).
(d) Effect of Expiration or
Termination. Upon expiration
or termination of this Agreement, Company shall pay Consultant for
services performed under this Agreement as set forth on
Schedule A.
The definitions contained in this Agreement and the rights and
obligations contained in this Section 10(d) and Sections 4, 5, 11 and 12 will survive any termination
or expiration of this Agreement.
11.
Non-Solicitation. During this Agreement, and for a
period of one (1) year after the termination of this Agreement, in
any State in the United States in which the Company does business,
or equivalent geographical subdivision in any foreign jurisdiction
in which the Company does business, Consultant will not solicit or
induce employees of the Company to terminate their employment with
the Company. In addition, Consultant will not ay any time solicit
customers of the Company based upon or using any of the
Company’s trade secrets within the meaning of Texas or
federal law.
(a) Successors
and Assigns. Consultant may
not subcontract or otherwise delegate Consultant’s
obligations under this Agreement without Company’s prior
written consent. Subject to the foregoing, this Agreement will be
for the benefit of Company’s successors and assigns, and will
be binding on Consultant’s assignees.
(b) Injunctive
Relief.
Consultant’s obligations under this Agreement are of a unique
character that gives them particular value; Consultant’s
breach of any of such obligations will result in irreparable and
continuing damage to Company for which money damages are
insufficient, and Company shall be entitled to injunctive relief
and/or a decree for specific performance, and such other relief as
may be proper (including money damages if
appropriate).
(c) Notices.
Any and all notices, requests, demands, or other communications
provided for hereunder, shall be given in writing by personal
service, by registered or certified mail, postage prepaid,
overnight delivery service, delivery charges prepaid, or by email,
facsimile or other electronic means addressed to the intended
recipients. A notice shall be deemed to have been received when
personally served or delivered or five (5) days after being mailed,
or one (1) day after being sent by overnight delivery service or by
email, facsimile or other electronic means.
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(d) Governing
Law; Forum. This Agreement
shall be governed in all respects by the laws of the United States
of America and by the laws of the State of Texas, as such laws are
applied to agreements entered into and to be performed entirely
within Texas between Texas residents. Each of the parties
irrevocably consents to the exclusive personal jurisdiction of the
federal and state courts located in Texas, as applicable, for any
matter arising out of or relating to this Agreement, except that in
actions seeking to enforce any order or any judgment of such
federal or state courts located in Texas, such personal
jurisdiction shall be nonexclusive. Additionally, notwithstanding
anything in the foregoing to the contrary, a claim for equitable
relief arising out of or related to this Agreement may be brought
in any court of competent jurisdiction.
(e) Severability.
If a court of law holds any provision of this Agreement to be
illegal, invalid or unenforceable, (a) that provision shall be
deemed amended to achieve an economic effect that is as near as
possible to that provided by the original provision and
(b) the legality, validity and enforceability of the remaining
provisions of this Agreement shall not be affected
thereby.
(f) Waiver;
Modification. If Company waives
any term, provision or Consultant’s breach of this Agreement,
such waiver shall not be effective unless it is in writing and
signed by Company. No waiver by a party of a breach of this
Agreement shall constitute a waiver of any other or subsequent
breach by Consultant. This Agreement may be modified only by mutual
written agreement of authorized representatives of the
parties.
(g) Entire
Agreement. This Agreement
constitutes the entire agreement between the parties relating to
this subject matter and supersedes all prior or contemporaneous
agreements concerning such subject matter, written or
oral.
[SIGNATURE PAGE FOLLOWS]
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IN
WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
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COMPANY
By: /s/
Xxxxx X. Xxxxx
Name:
Xxxxx X. Xxxxx
Title:
EVP and General Counsel
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CONSULTANT
XXXXXXX XXXXXXXXXXX
/s/
Xxxxxxx Xxxxxxxxxxx
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SCHEDULE A
SERVICES
Accounting
and financial reporting services and support in connection with
transition of duties and records to Company personnel as requested
from time to time by the officers of the Company.
Consultant
shall be available to provide services and support to the Company
for an average of up to six (6) hours per week during the term of
this Agreement.
During
the term of this Agreement, Consultant shall continue to have
access to, and be permitted to work from, the Company’s
current offices (as of the Effective Date) located in Danville, CA,
in Consultant’s sole discretion; provided, however, if the
Company closes, relocates or downsizes its current Danville, CA
office, Consultant’s continued access and use of the
Company’s offices shall be in the Company’s sole
discretion.
FEES
The
Company shall provide the following compensation to Consultant
under this Agreement:
(i) Cash
Compensation: (i) $15,000.00 per month for each of January
2019 and February 2019, payable monthly in arrears on or about the
1st of
every month, and (ii) $15,000.00 for the period of March 2019
through April 7, 2019, payable in arrears on or about April 7,
2019.
(ii) COBRA:
During the period commencing on the Effective Date and ending on
the earlier of (x) the Termination Date, (y) the Expiration Date,
or (z) the date on which Consultant becomes eligible for coverage
under the group health plan of a subsequent employer (of which
eligibility the Consultant hereby agrees to give prompt notice to
the Company) (in any case, the "COBRA Period"), subject to the
Executive's valid election to continue healthcare coverage under
Section 4980B of the Internal Revenue Code and the regulations
thereunder (together, the "Code"), the Company shall
continue to provide Consultant and Consultant's eligible dependents
with Company paid coverage under its group health plans at the same
levels as would have applied if Consultant's employment had not
been terminated, based on Consultant's elections in effect on the
Effective Date, provided, however, that (A) if any plan pursuant to
which such benefits are provided is not, or ceases prior to the
expiration of the period of continuation coverage to be, exempt
from the application of Section 409A under Treasury Regulation
Section 1.409A-1(a)(5), or (B) the Company is otherwise unable to
continue to cover Consultant under its group health plans without
incurring penalties (including without limitation, pursuant to
Section 2716 of the Public Health Service Act), then, in either
case, an amount equal to each remaining Company subsidy shall
thereafter be paid to Consultant in substantially equal monthly
installments over the continuation coverage period (or the
remaining portion thereof).
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