INDEPENDENT CONTRACTOR AGREEMENT
THIS INDEPENDENT CONTRACTOR AGREEMENT (the "Agreement") is made and
entered into as of March 31, 2004 in Santa Ana, California, by and between
VitroCo Incorporated, a wholly owned subsidiary of VitroTech Corporation, (the
"Company") with its principal place of business located at 0 Xxxxxx Xxxxxx
Xxxxx, Xxxxx 000, Xxxxx Xxx, Xxxxxxxxxx 00000, and Checkmate Management Co.,
LLC, a Nevada limited liability company("Contractor"), with his principal place
of business located at 000 X. Xxx Xxxx Xxxx, Xx. Xxxxxx, XX 00000 with reference
to the following facts:
A. The Company desires to retain Contractor on an independent contractor
basis to assist the Company in the completion of services described in Exhibit A
pertaining to the Company's products that are produced from Mineral(s) it mines
at its Mining Location(s).
B. Contractor represents that it has the requisite skills, contacts and
experience to carry out the services to be provided to the Company. Now
therefore in consideration of the mutual promises and covenants set forth herein
and such other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties agree as follows:
1. Term. This Agreement is effective from the date hereof until the
earlier of (i) completion of the services described in Exhibit A of this
Agreement ("Services and Compensation"), unless otherwise provided in Exhibit A
hereto, or (ii) unless terminated in accordance with the provisions hereof.
2. Services. Company hereby engages Contractor as an independent
contractor to perform for Company the services described on Exhibit A, which
services shall be performed by Contractor in a professional manner. The services
to be performed by Contractor hereunder shall be performed at Contractor's place
of business.
3. Compensation. For satisfactory performance of the services described on
Exhibit A, Company shall pay to Contractor the compensation provided for in
Exhibit A hereto in accordance with the schedule and subject to any performance
criteria set forth in Exhibit A hereto. Such compensation shall be the only
compensation due Contractor for its performance of the Services hereunder.
4. Independent Contractor Relationship. The parties hereto are entering
into this Agreement as independent contractors and no employment relationship,
partnership, joint venture or other association shall be deemed created by this
Agreement. The Company shall pay Contractor directly, without deductions of any
kind whatsoever, all monies which may become
due and payable hereunder, as, when and to the extent those payments become
payable. Contractor will have the entire responsibility for discharging all the
obligations of an independent contractor under all federal, state or local laws,
regulations or orders now or hereafter enforced, including without limitation
those relating to taxes, unemployment compensation or insurance, social
security, workers' compensation, disability pensions, tax withholdings and
including the filing of all returns and reports required of an independent
contractor and the payment of all taxes, assessments, contributions and the
other sums required of an independent contractor. The Company and Contractor
agree that no work, act, commission or omission of Contractor, his agents,
servants, or employees, pursuant to the terms and conditions of this Agreement
or otherwise, shall be construed to make or render Contractor, his agents,
servants or employees, an agent, servant, or employee of the Company. Company is
interested only in the results achieved by Contractor, and Contractor shall be
in control of the means by which the Contractor achieves that result.
5. Confidentiality and Nondisclosure. The parties acknowledge that
Contractor has executed the Confidentiality and Nondisclosure Agreement attached
as Exhibit B hereto, which Agreement is incorporated herein by this reference.
6. Termination. Company or Contractor shall be entitled to terminate this
Agreement within 30 days (and pursue all of its rights hereunder at law or in
equity) upon written notice to Contractor. No compensation shall be payable to
Contractor with respect to any Service rendered by Contractor after expiration
or termination of this Agreement for any reason.
7. Arbitration. Any claim that Contractor may have arising out of or
relating to this Agreement, or the breach thereof, or Contractor's relationship
with Company, or the termination of Contractor's relationship with Company,
shall be settled by binding arbitration in accordance with the Commercial
Arbitration Rules of the American Arbitration Association then in effect, and
judgment upon the award entered by the arbitrator(s) may be entered in any court
having jurisdiction thereof. Neither Company's right to file a lawsuit seeking
an injunction nor Company's right to injunctive relief is subject to arbitration
or to the provisions of this Section 7.
8. Miscellaneous.
A. Applicable Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of California applicable to the
construction and enforcement of agreements between parties resident in
California that are entered into and fully performed within California.
B. Severability. Nothing contained herein shall be construed so as
to require the commission of any act contrary to law, and wherever there is any
conflict between any provisions contained herein and any present or future
statute, law, ordinance or regulation contrary to which the parties have no
legal right to contract, the latter shall prevail; but the provision of this
Agreement which is affected shall be curtailed and limited only to the extent
necessary to bring it within the requirements of law.
C. Further Assurances. Each of the parties hereto shall execute and
deliver any and all additional papers, documents and other assurances, and shall
do any and all acts and things reasonably necessary in connection with the
performance of their obligations hereunder to carry out the intent of the
parties hereto.
D. Modifications or Amendments. No amendment, change or modification
of this Agreement shall be valid, unless in writing and signed by all of the
parties hereto.
E. Assignment and Succession. Rights and duties of the parties under
this Agreement shall not be assignable by either party, except that this
Agreement and all the rights hereunder may be assigned by the Company to any
corporation or other business entity which succeeds to all or substantially all
of the business of the Company though merger, consolidation, corporate
reorganization or by acquisition of all or substantially all of the assets of
the Company and which assumed the Company's obligations under this Agreement.
F. Number and Gender. In this Agreement, the masculine, feminine or
neuter gender, and the singular or plural number, shall each be deemed to
include the others whenever the context so requires.
G. Entire Agreement. This Agreement constitutes the entire
understanding and Agreement of the parties with respect to its subject matter
and any and all prior agreements, understandings or representations with respect
to its subject matter are hereby terminated and cancelled in their entirety and
are of no further force or effect.
H. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
I. Captions. The captions appearing at the commencement of the
section thereof are descriptive only and for convenience in reference. Should
there be any conflict between any such caption and the section at the head of
which it appears, the section and not such caption shall control and govern in
the construction of this Agreement.
J. Attorneys' Fees. In the event suit or other proceedings are
instituted to enforce any of the terms or conditions of this Agreement, the
prevailing party in such litigation or proceedings shall be entitled, as an
additional item of damages, to such reasonable attorneys' fees and costs or cost
of such other proceedings as may be fixed by any court of competent jurisdiction
therefore, whether or not such litigation or proceedings proceed to a final
judgment or award.
K. Parties in Interest. Nothing in this Agreement, whether express
or implied, is intended to confer any rights or remedies under or by reason of
this Agreement on any persons other than the parties and their respective
successors and assigns, nor is anything in this Agreement intended to relieve or
discharge the obligation or liability of any third persons or any party to this
Agreement, nor shall any provision give any third person any right of
subrogation or action over or against any party to this Agreement.
L. Not An Adhesion Contract. The language of this Agreement shall be
construed as a whole according to its fair meaning and not strictly for or
against either of the parties hereto.
In witness whereof, this Agreement was executed as of the date first
written above.
COMPANY: CONTRACTOR:
VitroCo Incorporated, a wholly owned Checkmate Management Co., LLC,
subsidiary of VitroTech Corporation a Nevada limited liability company
By:________________________________ By:_________________________________
Xxxx Xxx Xxxxx, Xxxxxx X. Xxxxx,
President Manager
EXHIBIT A
SERVICES AND COMPENSATION
1. Services. Contractor, through its manager Xxxxxx X. Xxxxx, shall seek out
companies potentially interested in the use of Company's mineral products.
Contractor is aware that Company (through its predecessor Hi-Tech Environmental
Products, LLC) has been actively involved in the development of technology for
the use of its mineral products for many years, and has proprietary,
confidential technical information relating thereto, some of which is now
evidenced in patent applications. In addition, Company is actively involved in
the marketing of its mineral products in a variety of industries, including both
the plastics and the paints/coatings industries. As part of its sales efforts,
Company is a party to a variety of agreements with third parties, including but
not limited to distribution agreements, manufacturers representative agreements
and independent contractor agreements. As a result thereof, while Company is
interested in the contacts Contractor may have to promote Company's mineral
products, Company is only willing to accept the assistance of Contractor on the
following terms and conditions. Prior to Contractor speaking to any third party
concerning Company's mineral products, Contractor shall first clear the name of
the third party with Company. Company shall have the right to accept or reject
the name provided by Contractor in Company's sole and absolute discretion. For
instance, Company may reject the name being offered by Contractor, even thought
Company has no contact with that third party at this time. In addition, nothing
shall prevent Company from contacting the third party directly, or providing the
name of the third party to one of Company's distributors, manufacturer's
representatives or independent contractors. If, and only if, Company clears the
name of the third party for the benefit of Contractor, may Contractor contact
the third party. Then, if the third party is interested in learning more about
Company's mineral products, Company, either internally or through its outside
sales and marketing groups, shall contact the third party, and Contractor shall
have only the involvement specifically requested by Company. If the third party
is interested in purchasing Company's mineral products, and if the Company
elects to sell its mineral products to the third party, then Contractor shall be
paid a royalty mutually agreeable to both the Company and Contractor.
As part of the services being rendered by Contractor hereunder, Contractor, both
for itself, its managers and members, and Mineral Equities Trust, Hexon Trust,
and their respective Trustees and beneficiaries, hereby assigns to Company all
intellectual property now owned or owned in the future by any of the foregoing
parties in connection with Company's mineral products.
2. Term. The term of this Agreement is six (6) months from mutual execution of
this Agreement.
3. Compensation. Contractor shall be paid the sum of Sixty Thousand Dollars
($60,000.00), payable in six (6) equal monthly installments of Ten Thousand
Dollars ($10,000.00), the first of which shall be due upon mutual execution of
this Agreement. The foregoing sum shall be credited against any sums otherwise
due Contractor pursuant to paragraph 1 of this Exhibit A.
4. Right to Mineral. Upon written notice from Contractor, Company shall mine and
make available to Contractor a total of up to Three Thousand (3,000) tons of
Mineral, in increments determined by Contractor, so long as (i) the amount
requested by Contractor does not negatively impact Company's agreements to
provide Mineral to third parties or exceed ten percent (10%) of the annual
capacity of Mineral which Company is permitted or able to mine and have removed
from the Property. The Mineral shall be mined, but not milled, by Company. The
Mineral shall be made available in roughly two and one-half (2 1/2) inch nominal
cobble. Contractor has represented that mined but not milled Mineral is
acceptable to it, and that it has the capacity to mill the Mineral in its own
facilities to whatever classification it requires. Contractor shall be
responsible for removing the Mineral from the Property. Company does not
guarantee to Contractor any particular grade of Mineral.
In consideration of the foregoing, at the time the Mineral is removed
by Contractor, Contractor shall pay to Company a sum equal to Contractor's
prorated share of all costs (based on weight of the Mineral) incurred by Company
in the annual permitting, mining, stockpiling and reclaiming of the Mineral
(including reasonable general, administrative and overhead costs directly
related to the Property), plus five percent (5%) profit.
Contractor shall have the right to assign its right to receive some or
all of the Mineral provided in this paragraph to a third party.
5. New Products. Contractor has represented to Company that Contractor has
created, and desires to continue to create, products which can be improved
through the addition of Company's mineral products. Contractor may, from time to
time, disclose these new products to Company. Company shall have no obligation
to accept the new products. Contractor is aware that Company is actively engaged
in the sale of its mineral products in a variety of product lines, and that any
new product which Contractor claims to have created may conflict with existing
relationships between Company and third parties. If Company desires to jointly
market Contractor's new product(s), then Company and Contractor shall enter into
a mutually acceptable financial arrangement. If Company does not elect to
jointly market Contractor's new product, then Contractor shall be entitled to do
so without Company. However, Company is under no obligation to sell any of its
mineral products to Contractor, or to any third party who purchases any of
Contractor's new products.
EXHIBIT B
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
("Contractor") is being engaged to perform services as an independent
contractor for VitroCo Incorporated ("Company"). In view of the nature of
Company's business, Contractor understands that it could not perform
Contractor's duties for Company without having access to certain Confidential
Information (as defined below), and that Company is unwilling to disclose any
Confidential Information except upon the terms and conditions set forth in this
Agreement. In order to induce Company to engage Contractor and disclose certain
Confidential Information to Contractor, Contractor agrees as follows:
1. Contractor's Acknowledgment and Representation. Contractor acknowledges
that Company has a strict policy against using proprietary information belonging
to any other person or entity without the express permission of the owner of
that information. Contractor represents and warrants that its performance of all
the terms of this Agreement and as an independent contractor of Company does not
and will not result in a breach of any duty owed by Contractor to a third party
to keep in confidence any proprietary information, knowledge or data acquired by
Contractor in confidence or in trust prior to or during Contractor's engagement
by Company, and Contractor agrees not to disclose to Company or induce Company
to use any confidential or proprietary information belonging to any of
Contractor's previous employers or business associates.
2. Authorization. Contractor hereby authorizes Company to provide a copy
of this Agreement to any of Contractor's present or future business associates,
and to notify such business associates that Company intends to exercise its
legal rights arising out of or in connection with this Agreement.
3. Company's Ownership of Intangibles. All processes, methods, inventions,
patents, copyrights, trademarks and other intangible rights that may be
conceived or developed by Contractor, either alone or with others, in the course
of Contractor's engagement by Company, whether or not conceived or developed
during Contractor's working hours, and with respect to which the equipment,
supplies, facilities or trade secret information of Company were used, or that
relate to the business of Company or to Company's actual or demonstrably
anticipated research and development, or that result from any work performed by
Contractor for Company, shall be the sole property of Company. All right, title
and interest to such property shall be assigned to and become vested in Company
immediately upon the discovery or conception of such property without the
requirement of any act by Contractor or Company other than the execution of this
Agreement. Contractor shall have no right, title or interest in such property
after its assignment to Company, and shall make no use of such property without
the express, written consent of Company, except for the benefit of Company.
4. Contractor Loyalty.
(a) While engaged by Company, Contractor shall devote such energies,
interests, abilities and productive time to the performance of this Agreement
and shall not, engage in any other activity that would materially interfere with
the performance of Contractor's duties under this Agreement.
(b) While engaged by Company under this Agreement, Contractor shall
not (i) either directly or indirectly, carry on, engage in or have any interest
in any business that competes with Company or (ii) without the express written
consent of Company, accept employment with, or in any other manner agree to
provide, for compensation, services for any other person or entity which
competes, directly or indirectly, with Company or (iii) materially disrupt,
damage, impair or interfere with the business of Company, whether by way of
interfering with or soliciting its employees, disrupting its relationships with
clients, customers, agents, representatives or vendors, or otherwise, or (iv)
make any statement about Company that might harm the reputation or business of
Company or reflect unfavorably upon Company or any of its owners or employees or
their families. Past and present engagements accepted.
(c) Contractor agrees not to attempt to locate any other properties
on which mineral similar to the Mineral may be found, not to purchase any of
such properties, not to inform any third parties of such properties or assist
such third parties in the acquisition of such properties or attempt, either
alone or with others, to develop a synthetic material which has the same or
similar properties to the Mineral. Contractor further agrees not to contact the
owners of the Mineral(s) or Mining Location(s) and/or make any offers to such
owners that might in any way interfere with the existing contractual
relationships between the Company and such owners.
5. Nondisclosure and Nonuse of Company's Confidential Information. In the
course of Contractor's engagement by Company pursuant to this Agreement,
Contractor will have access to confidential, proprietary information relating to
the business of Company. Such confidential, proprietary information is referred
to as the "Confidential Information," and includes, without limitation, all
information relating to Company's finances, operations, services, strategic
plans, research and development activities, its costs and pricing policies, its
purchasing, merchandising and selling strategies, its clients, customers and
vendors, its methods, data, specifications, processes, hardware, software
programs, firmware, algorithms, computer source code, computer object code,
sound recordings, flowcharts, diagrams, schematics, techniques, systems,
formulas, patterns, models, designs, devices, compilations, lists of costs and
prices, lists of patients, clients, customers and vendors, and other information
that is valuable to Company by virtue of the fact that it is secret, proprietary
information neither known to nor used by Company's competitors and which could
be damaging to Company if disclosed. Contractor agrees that, except as required
in the course of Contactor's engagement by Company pursuant to this Agreement,
Contractor shall not, either directly or indirectly, for Contractor or on behalf
of any other person, disclose or use any of Company's Confidential Information.
It is understood that Contractor shall have no obligation with respect to any
information, know-how, data or inventions which:
(a) At the time of disclosure by Company is in the public domain as
evidenced by printed publication or otherwise; or
(b) After disclosure by Company becomes part of the public domain by
publication or otherwise through no fault of Contractor; or
(c) Contractor can show by reasonably convincing evidence, was in
Contractor's possession at the time of disclosure by Company and was not
previously acquired from Company by Contractor on a confidential basis.
Contractor's obligation under the terms of Paragraph 5 shall be for a period of
five (5) years after the effective date of this Agreement, provided that even
after that period no Information disclosed to Contractor by Company during that
period will be disclosed to any other party unless approved in writing by
Company.
6. Return of Written Information. Contractor agrees that all papers,
notes, electronically maintained data, records, recordings, drawings, memoranda,
and other writings and documents that are made, created or compiled by
Contractor or which are or were available to Contractor while engaged by Company
concerning any of the Confidential Information described in Paragraph 5, shall
be the property of Company. Upon termination of Contractor's engagement by
Company, regardless of how termination may be effected, or whenever requested by
Company, Contractor shall immediately return to Company all such papers notes,
electronically maintained data, records, recordings, drawings, memoranda, and
other writings and documents, and all books, lists of costs and prices, lists of
patients, clients, customers and vendors, and any and all other documents,
objects, data or other property acquired, collected, made, created or compiled
by Contractor in the course of Contractor's employment with Company, other than
materials created by Contractor which were not accepted by Company.
7. Company's Remedies for Breach. Contractor acknowledges (a) that its
employment duties will provide Contractor access to and/ or possession of the
Confidential Information, (b) that because of Contractor's intimate knowledge of
Company and Contractor's particular experience, its services to Company are of a
special, unique, unusual and extraordinary character which give Contractor's
services peculiar value, the loss of which cannot be reasonably or adequately
compensated in damages in an action at law, and, (c) that any activities or
employment on Contractor's part which would constitute a breach of any of
Paragraphs 3, 4, 5 or 6, above, will cause irreparable harm to Company and money
damages would be inadequate to compensate Company completely for its loss
resulting from such breach. Contractor therefore agrees that Company, in
addition to all other rights, shall have the right to file a lawsuit, in any
court of competent jurisdiction, to enjoin Contractor from engaging in such
activities and to seek any other equitable relief that may be appropriate.
8. Miscellaneous. This Agreement shall be governed by California law
applicable to contracts between residents of California that are wholly executed
and performed in California. This Agreement contains the full and complete
understanding of the parties with respect to the subject matter hereof and
supersedes all prior or contemporaneous representations and understandings,
whether oral or written. In the event that any provision hereof or any
obligation or grant of rights hereunder is found invalid or unenforceable
pursuant to judicial decree or decision, any such provision, obligation or grant
of rights shall be deemed and construed to extend only to the maximum permitted
by law, and the remainder of this Agreement shall remain valid and enforceable
according to its terms. This Agreement shall be binding upon Contractor's heirs,
executors and administrators and will inure to the benefit of Company and its
successors and assigns. In the event either party institutes legal proceedings
to enforce any of the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees and costs in addition to any damages that
may be awarded. This Agreement may not be amended, waived or modified except by
an instrument in writing executed by Contractor and a duly authorized
representative of Company. Contractor agrees to the above terms and acknowledges
receipt of a copy of this Agreement.
Date: _________________ "Contractor"
CHECKMATE MANAGEMENT CO., LLC,
a Nevada limited liability company
Mailing address:
000 X. Xxx Xxxx Xxxx
Xx. Xxxxxx, XX 00000
