Exhibit 4.2
INDEPENDENT CONTRACTOR AGREEMENT
This Independent Contractor Agreement ("Agreement") is made and effective
this 20th day of August 2004, by and between Xxxxxxxx Xxxxxxxxxxx ("Consultant")
and Global Wireless Satellite Networks (USA), Inc., a Delaware corporation
("Company")
WHEREAS, Company desires to engage Consultant to perform certain services
for the Company, pursuant to the terms and conditions stated in this Agreement,
and
WHEREAS, Consultant desires to perform certain services for Company,
pursuant to the terms and conditions stated herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises
and covenants herein contained, the parties agree as follows:
1. Services to be Performed. Company desires that Consultant perform, and
Consultant agrees to perform the following services for the Company in the
indicated capacities:
o Actively attempt to locate a suitable merger candidate as well as
analyze and perform proper due diligence functions through
consummation of such transaction. In the event that Company
identifies such a candidate, Consultant shall assist Company in the
foregoing functions, at no additional expense to the Company, in
order to consummate such merger. Consultant shall spend no less than
10 hours per month performing the duties enumerated herein.
2. Consultant's Performance. All work done by Consultant shall be of the highest
professional standard and shall be performed to Company's reasonable
satisfaction.
3. Status. Consultant's status under this Agreement shall be that of an
independent consultant, and not that of an agent or employee. Consultant
warrants and represents that he has complied with all federal, state and local
laws regarding business permits and licenses that may be required for him to
perform the work as set forth in this Agreement.
4. Terms of Compensation. In the event Consultant successfully performs all
services found in Section 1 of this Agreement, Company shall compensate
Consultant by issuing him One Million Seven Hundred Fifty Thousand Shares
(1,750,000) shares of common stock ("Shares"). Within 30 days after the
completion of such a merger, the Company shall file a registration statement on
Form S-8 and the Consultant shall have the right to register the Shares pursuant
to that registration statement or if such form of registration statement is no
longer available to Consultant as a result of the adoption of new laws with
respect to such form.
5. Reimbursement of Expenses. Company shall reimburse Consultant for reasonable
monthly expenses provided the expenses are documented in writing by Consultant
to the satisfaction of the Company.
6. Termination. This Agreement may be terminated at anytime by Consultant during
the term hereof with 90 days written notice. Further, this Agreement may be
terminated by the Company for Cause (as that term is defined below) with 90 days
written notice. In the event Company dismisses Consultant for Cause then
Company's obligations to Consultant shall be limited to the compensation earned
up to the date of Consultant's termination for Cause.
(a) Definition of Cause. "Cause" shall mean:
(i) any action by Consultant which constitutes dishonesty relating
to Company, a willful violation of law (other than traffic offenses
and similar minor offenses) or a fraud against Company;
(ii) Consultant is charged by indictment for, is convicted of or
pleads guilty to a felony or other crime;
(iii) misappropriation of Company's funds or assets by Consultant
for his personal gain;
(iv) willful misconduct by Consultant relating to Company,
including, without limitation, willful failure to perform stated
duties or to follow legitimate directions of his superiors;
(v) the continual or frequent possession by Consultant of an illegal
substance or abuse by Consultant of a controlled substance or
alcohol resulting in a pattern of behavior disruptive to the
business operations of Company;
(vi) failure by Consultant to perform Consultant's duties and
responsibilities to Company in a competent manner;
(vii) any material violation by Consultant of any covenant contained
in this Agreement, including covenants related to confidentiality;
and
(ix) any other willful misconduct which materially injures Company.
Subject to this Section 6, in the event that the Company terminates this
Agreement for any reason other than "For Cause", Consultant shall receive
all benefits pursuant to Section 4 of this Agreement as if Consultant
satisfactorily performed all required duties during the Term of this
Agreement.
7. Federal, State and Local Payroll Taxes. Company will not withhold or pay on
behalf of Consultant or any of its employees: (a) federal, state or local income
taxes; or (b) any other payroll tax of any kind. In accordance with the terms of
this Agreement and the understanding of the parties herein, Consultant shall not
be treated as an employee with respect to the services performed hereunder for
federal, state or local tax purposes.
8. Fringe Benefits. Because Consultant is engaged in its own independent
consulting business, it is not eligible for, nor entitled to, and shall not
participate in, any of Company's pension, health or other fringe benefit plans,
if any such plans exist. Such participation in these fringe benefits plans is
limited solely to Company's employees.
9. Notice to Consultant Regarding Tax Liability. Consultant understands that he
is responsible to pay his income tax in accordance with federal, state and local
law. Consultant further understands that he is liable for Social Security,
("FICA") tax, to be paid in accordance with all applicable laws.
10. Term. This Agreement's term shall begin on the date hereof and shall remain
in force until August 20, 2005. Unless both parties mutually agree to terminate
this Agreement.
11. Confidentiality. During the term of this Agreement, and thereafter in
perpetuity, Consultant shall not, without the prior written consent of Company,
disclose to anyone any Confidential Information. "Confidential Information" for
the purposes of this Agreement shall include Company's proprietary and
confidential information such as, but not limited to, customer lists, business
plans, marketing plans, financial information, designs, drawing, specifications,
models, software, source codes and object codes. Confidential Information shall
not include any information that: (a) is disclosed by Company without
restriction; (b) becomes publicly available through no act of Consultant; or (c)
is rightfully received by Consultant.
12. Controlling Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
13. Headings. The headings in this Agreement are inserted for convenience only
and shall not be used to define, limit or describe the scope of this Agreement
or any of the obligations herein.
14. Final Agreement. This Agreement constitutes the final understanding and
agreement between the parties with respect to the subject matter hereof and
supersedes all prior negotiations, understandings and agreements between the
parties, whether written or oral. This Agreement may be amended, supplemented or
changed only by an agreement in writing signed by both of the parties.
15. Notice. Any notice required to be given or otherwise given pursuant to this
Agreement shall be in writing and shall be hand delivered, mailed by certified
mail, return receipt requested or sent by recognized overnight courier service
as follows:
If to Consultant or Company:
x/x Xxxxxxxx Xxxxxxxx
00 Xxxxxxxxxxxxx
Xxxxxx, XX XX0X
Such Notice shall be deemed given when actually delivered.
16. Severability. If any term of this Agreement is held by a court of competent
jurisdiction to be invalid or unenforceable, then this Agreement, including all
of the remaining terms, will remain in full force and effect as if such invalid
or unenforceable term had never been included.
17. Restrictions on Assignment. Consultant may not assign or otherwise transfer
his rights or delegate its obligations created hereunder to any third party
without the prior written consent of the Company. Notwithstanding the foregoing,
this Agreement shall bind and inure to the benefit of the successors and assigns
of the parties.
IN WITNESS WHEREOF, this Agreement has been executed by the parties as of
this the 20th day of August, 2004.
Global Wireless Satellite Networks (USA), Inc.
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: President
/s/ Xxxxxxxx Xxxxxxxxxxx
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Xxxxxxxx Xxxxxxxxxxx
