EXHIBIT 10.5
CONSULTING SERVICES AGREEMENT
CONSULTING SERVICES AGREEMENT (this "Agreement") is entered into as of September
15th, 2008 by and between Synergy Resources Corporation, a placeplaceColorado
corporation (the "Company"), and Xxxxxxx X. XxXxxxxxx and Xxxx X. Xxxxxx,
collectively ("Consultants").
RECITALS
A. The Company desires to be assured of the association and services of
Consultants and to avail itself of Consultant's experience, skills, abilities,
knowledge and background and is therefore willing to engage Consultants upon the
terms and conditions set forth herein; and
B. Consultants agree to be engaged and retained by the Company upon the
terms and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the covenants,
agreements and obligations set forth herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby covenant and agree as follows:
1. Consulting Services. Consultants shall, on a part-time basis, provide
corporate development and strategic management consulting services to the
Company (the "Consulting Services"), including but not limited to: evaluation
and due diligence of potential business opportunities, target acquisitions and
assistance with all applicable guidelines and responsibilities of being a
publically traded company.
2. Term. The term of this Agreement shall commence as of the date hereof
and shall be effective for a period of one year (the "Term"). This agreement may
be extended under the same terms by mutual agreement between Consultants and the
Company.
3. Direction, Control and Coordination. Consultants shall perform the
Consulting Services under the sole direction and with the approval of the
Company's Board of Directors. Since the Consultants are members of the Company's
Board of Directors, Consultants shall perform the consulting services under the
direction of an officer of the Company to whom such direction is delegate by
resolution of the remaining Board of Directors.
4. Dedication of Resources. Consultants shall devote such time, attention
and energy as is necessary to perform and discharge the duties and
responsibilities under this Agreement in an efficient, trustworthy and
professional manner.
5. Standard of Performance. Consultants shall use their best reasonable
efforts to perform the consulting services as an advisor to the Company in an
efficient, trustworthy and professional manner. Consultants shall perform their
consulting services to the sole satisfaction of, and in conjunction and
cooperation with, the Company.
6. Compensation. The Company shall pay to Consultants a total of ten
thousand dollars per month in advance on the fifteen day of each month (five
thousand dollars each per month) in exchange for the Consulting Services.
7. Confidential Information. Consultants recognize and acknowledge that by
reason of performance of Consultant's services and duties to the Company (both
during the Term and before or after it) Consultants have and will continue to
have access to confidential information of the Company and its affiliates,
including, without limitation, information and knowledge pertaining to
innovations, designs, ideas, plans, trade secrets, proprietary information,
advertising, distribution and sales methods and systems, and relationships
between the Company and its affiliates and customers, clients, suppliers and
others who have business dealings with the Company and its affiliates
("Confidential Information"). Consultants acknowledge that such Confidential
Information is a valuable and unique asset and covenants that it will not,
either during or for three (3) years after the term of this Agreement, disclose
any such Confidential Information to any person for any reason whatsoever or use
such Confidential Information (except as its duties hereunder may require)
without the prior written authorization of the Company, unless such information
is in the public domain through no fault of the Consultants or except as may be
required by law. Upon the Company's request, the Consultants will return all
tangible materials containing Confidential Information to the Company. The
Consultants also realize that as members of the Board of Directors, they have a
fiduciary duty to keep confidential any and all matters sensitive to the
Company.
8. Relationship. The only relationship that exists is that Consultants are
members of the Board of Directors and this agreement does not create, and shall
not be construed to create, any joint venture or partnership between the
parties, and may not be construed as an employment agreement. No officer,
employee, agent, servant, or independent contractor of Consultants nor its
affiliates shall at any time be deemed to be an employee, agent, servant, or
broker of the Company for any purpose whatsoever solely as a result of this
Agreement, and Consultants shall have no right or authority to assume or create
any obligation or liability, express or implied, on the Company's behalf, or to
bind the Company in any manner or thing whatsoever.
9. Notices. Any notice required or desired to be given under this Agreement
shall be in writing and shall be deemed given when personally delivered, sent by
an overnight courier service, or sent by certified or registered mail to the
following addresses, or such other address as to which one party may have
notified the other in such manner:
If to the Company: Synergy Resource Corporation
600 17th Street, 0000 Xxxxx
Xxxxxx, Xxxxxxxx 00000
000-000-0000
000-000-0000 (fax)
If to the Consultants: Xxxx X. Xxxxxx
0000 Xxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000
000-000-0000
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Xxxxxxx X. XxXxxxxxx
0000 Xxxxxx Xxxxxx Xxx.
Xxxxxxxx, Xxxxxxxx 00000
000-000-0000
10. Applicable Law. The validity, interpretation and performance of this
Agreement shall be controlled by and construed under the laws of the State of
placeplaceColorado.
11. Severability. The invalidity or unenforceability of any provision
hereof shall in no way affect the validity or enforceability of any other
provisions of this Agreement.
12. Waiver of Breach. The waiver by either party of a breach of any
provision of this Agreement by the other shall not operate or be construed as a
waiver of any subsequent breach by such party. No waiver shall be valid unless
in writing and signed by an authorized officer of the Company or Consultant.
13. Assigns and Assignment. This Agreement shall extend to, inure to the
benefit of and be binding upon the parties hereto and their respective permitted
successors and assigns; provided, however, that this Agreement may not be
assigned or transferred, in whole or in part, by the Consultants except with the
prior written consent of the Company.
14. Entire Agreement. This Agreement contains the entire understanding of
the parties with respect to its subject matter. It may not be changed orally but
only by an agreement in writing signed by the party against whom enforcement of
any waiver, change, modification, extension, or discharge is sought.
15. Counterparts. This Agreement may be executed by facsimile and in
counterparts each of which shall constitute an original document, and both of
which together shall constitute the same document.
Remainder of Page Left Blank Intentionally
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IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year
first above written.
The Company: SYNERGY RESOURCE CORPORATION
By: /s/ Xx Xxxxxxxx
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Xx Xxxxxxxx, Chief Executive Officer
The Consultants: XXXXXXX X. XXXXXXXXX
By: /s/ Xxxxxxx X. XxXxxxxxx
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Xxxxxxx X. XxXxxxxxx
The Consultants: XXXX X. XXXXXX
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Xxxx X. Xxxxxx
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