ADVISORY AGREEMENT
Exhibit 10.12
This
Advisory Agreement is made and entered into, as of November 8, 2019
(“Effective
Date”), by and between PEDEVCO Corp., a Texas
corporation (“Company”), having a principal
place of business at 575 N. Dairy Ashford, Energy Xxxxxx XX, Xxxxx
000, Xxxxxxx, Xxxxx 00000 and Xxxx Xxxx, a(n) X individual, ☐ partnership,
☐ limited liability partnership, ☐ corporation, ☐
limited liability company (check the appropriate box), having a
principal place of business at 000 Xxxx Xxxx, Xxxxxxx, Xxxxx 00000
(“Advisor”).
1. Engagement
of Services
.
Company engages Advisor 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.
.
Company will pay Advisor the fee set forth on Schedule A. Company will
reimburse Advisor’s expenses which have been approved
beforehand in writing by Company (email acceptable) no later than
thirty (30) days after Company’s receipt of Advisor’s
invoice, provided that reimbursement for expenses may be delayed
until such time as Advisor has furnished reasonable documentation
for authorized expenses as Company may reasonably request. Upon
termination of this Agreement for any reason, Advisor 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) Advisor’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. Advisor 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. Advisor
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. Advisor 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.
Advisor is solely responsible for, and must maintain adequate
records of, expenses incurred in the course of performing services
under this Agreement. No part of Advisor’s compensation will
be subject to withholding by Company for the payment of any social
security, federal, state or any other employee payroll taxes.
Advisor 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 Advisor by filing Form 1099-MISC with the Internal Revenue
Service as required by law.
(b) Company understands
and agrees that Advisor shall render services in whatever manner
deemed appropriate by Advisor. During the term of this Agreement,
Advisor 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 Advisor performs his or her business or services, except
that Advisor 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.
(d) Advisor 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.
Advisor’s services are not exclusive to the Company, and
Advisor may render services for other business
entities.
4. Reserved
(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 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 Advisor and that Company has
received from others that Company is obligated to treat as
confidential or proprietary.
.
During Advisor's independent contractor relationship under this
Agreement, Company shall provide to Advisor Confidential
Information. In exchange for the Company's promise to provide
Advisor with Confidential Information, and except as permitted in
this Section 5(b), Advisor shall not
use, disseminate or in any way disclose the Confidential
Information. Advisor may use the Confidential Information solely to
perform services pursuant to this Agreement for the benefit of
Company. Advisor shall treat all Confidential Information with the
same degree of care as Advisor accords to Advisor’s own
confidential information, but in no case shall Advisor use less
than reasonable care. If Advisor is not an individual, Advisor
shall disclose Confidential Information only to those of
Advisor’s employees who have a need to know such information.
Advisor 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 Advisor
under this Agreement. Advisor shall immediately give notice to
Company of any unauthorized use or disclosure of the Confidential
Information. Advisor shall assist Company in remedying any such
unauthorized use or disclosure of the Confidential Information.
Advisor 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
.
Advisor’s obligations under Section (b) shall not apply to any
Confidential Information that Advisor can demonstrate (a) was
in the public domain at or subsequent to the time such Confidential
Information was communicated to Advisor by Company through no fault
of Advisor; (b) was rightfully in Advisor’s possession
free of any obligation of confidence at or subsequent to the time
such Confidential Information was communicated to Advisor by
Company; or (c) was developed by employees of Advisor
independently of and without reference to any Confidential
Information communicated to Advisor by Company. A disclosure of any
Confidential Information by Advisor (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 Advisor shall provide prompt prior written
notice thereof to Company to enable Company to seek a protective
order or otherwise prevent such disclosure.
. All
Confidential Information and any materials (including, without
limitation, documents, drawings, papers, diskettes, tapes, models,
apparatus, sketches, designs and lists) furnished to Advisor by
Company, whether delivered to Advisor by Company or made by Advisor
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. Advisor agrees
to keep all Company Property at Advisor’s premises unless
otherwise permitted in writing by Company. Within five (5) days
after any request by Company, Advisor shall destroy or deliver to
Company, at Company’s option, (a) all Company Property and
(b) all materials in Advisor’s possession or control
that contain or disclose any Confidential Information. Advisor will
provide Company a written certification of Advisor’s
compliance with Advisor’s obligations under this Section 5(d).
6. Indemnification
.
Advisor 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 Advisor
under this Agreement infringes any intellectual property rights or
publicity rights of a third party or (ii) any negligence by
Advisor or any other act or omission of Advisor, including without
limitation any breach of this Agreement by Advisor.
7. Observance
of Company Rules
. At
all times while on Company’s premises, Advisor 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, Advisor will not accept work,
enter into a contract or accept an obligation inconsistent or
incompatible with Advisor’s obligations, or the scope of
services to be rendered for Company, under this Agreement. Advisor
warrants that, to the best of Advisor’s knowledge, there is
no other existing contract or duty on Advisor’s part that
conflicts with or is inconsistent with this Agreement. Advisor
agrees to indemnify Company from any and all loss or liability
incurred by reason of the alleged breach by Advisor of any services
agreement with any third party.
9. Reserved.
10. Term
and Termination
(a) Term
. This
Agreement is effective as of the Effective Date set forth above and
shall continue indefinitely unless and until terminated by either
party as set forth below.
(b) Termination
by Company
.
Company may terminate this Agreement without cause at any time,
with termination effective fifteen (15) days after Company’s
delivery to Advisor of written notice of termination (email
acceptable). Company also may terminate this Agreement immediately
for a material breach by Advisor if Advisor’s material breach
of any provision of this Agreement is not cured within ten (10)
days after the date of Company’s written notice of breach
(email acceptable).
(c) Termination
by Advisor
.
Advisor may terminate this Agreement without cause at any time,
with termination effective fifteen (15) days after Advisor’s
delivery to Company of written notice of termination (email
acceptable). Advisor 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 Advisor’s written notice of breach
(email acceptable).
. Upon
expiration or termination of this Agreement, Company shall pay
Advisor 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 5 and 11 will survive any
termination or expiration of this Agreement.
(a) Successors
and Assigns
.
Advisor may not subcontract or otherwise delegate Advisor’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 Advisor’s assignees.
(b) Injunctive
Relief
.
Advisor’s obligations under this Agreement are of a unique
character that gives them particular value; Advisor’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.
(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 Advisor’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 Advisor. 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]
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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ADVISOR
XXXX XXXX
By:
/s/ Xxxx Xxxx
SSN: On
File
Address: 000 Xxxx
Xxxx, Xxxxxxx, XX 00000
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SCHEDULE A
SERVICES
Technical
advisory services.
FEES
The
Company shall provide the following compensation to Advisor under
this Agreement:
a.
Continued vesting
of 50,000 shares of Company restricted common stock granted to
Consultant for advisory services on August 28, 2019 under the
Company’s 2012 Equity Incentive Plan, as amended, such
vesting subject to continued service of Advisor to the Company
under this Agreement.
b.
Such other
compensation as agreed upon from time to time between the Company
and Advisor.
