Exhibit 99.3
INDEPENDENT CONSULTANT AGREEMENT
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THIS AGREEMENT is entered into as of July 23rd , 2003, by and between FTS
APPAREL, INC., a Colorado corporation ("FTS"), and Mr. Xxx Xxxxx;
("CONSULTANT").
In consideration of the mutual promises and covenants contained below, the
parties agree as follows:
1. SERVICES TO BE RENDERED. CONSULTANT shall perform the following
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marketing and sales services to the best of its abilities and to FTS's
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satisfaction, including without limitation:
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(a) Developing and implementing a marketing program and plan for sales of
GlobalStar Satellite phones, Airvoice Wireless products to selected markets in
Texas;
(b) Exercising responsibility for all sales resulting directly or indirectly
from business relationships that CONSULTANT has initiated.
(c) The CONSULTANT is responsible for establishing contact with potential
customers. Providing potential customers with information regarding products and
applications that FTS is a Value Added Reseller of other related products.
(d) FTS will provide CONSULTANT with marketing materials to perform work.
Materials will include demo disks and CD's and other relevant marketing
material.
(e) All leads and visits with potential customers must first be cleared with
FTS (via telephone). This will prevent contractor from visiting existing
customers or accounts currently active with FTS's full time Marketing staff.
2. INDEPENDENT CONTRACTOR STATUS. CONSULTANT expressly acknowledges that it
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will be acting as an authorized independent contractor and not as an employee,
for all purposes, including payment of Social Security withholding tax and all
other Federal, State and Local taxes.
As an authorized consultant, CONSULTANT may not make commitments for or
bind FTS in the absence of a written acknowledgment in each such case from an
authorized representative of FTS.
3. PERFORMANCE OF INDEPENDENT CONTRACTOR. All work performed hereunder by
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REPRESENTATIVE shall be of the highest professional standards and performed to
FTS's reasonable satisfaction.
4. COMPENSATION. CONTRACTOR will receive a total of 20,000 shares of FTS
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common stock paid as follows: FTS will issue to the Contractor a certificate
representing 20,000 shares valued at $11,600.00 US. The shares will be
registered in an S-8 registration statement .
CONTRACTOR's compensation shall also include a commission or referral on all FTS
vendor product sales in which CONTRACTOR actively participates or as designated
by Vice President of Sales. "Active participation" shall mean all sales where
CONTRACTOR made the initial contacts with the customer. An example of where
CONTRACTOR has not actively participated in a sale is where FTS previously had
an existing relationship with the customer, and said customer contacted FTS
without prompting from CONTRACTOR. FTS shall make the final decision on whether
CONTRACTOR actively participated in a sale. The rate of compensation shall be
formalized at a later date:
NOTE: SALES OF PRODUCTS ARE ACCUMULATIVE ON AN ANNUAL BASIS AND RESET TO ZERO
FOR EACH ANNIVERSARY (ANNIVERSARY DATE IS BASED ON THE EXECUTION OF THIS
AGREEMENT).
5. PAYMENTS. Commissions shall be paid to CONTRACTOR as defined by 4.
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COMPENSATION immediately following the month in which payment on invoices is
received from customer.
6. TRADE SECRETS.
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(a) With respect to FTS's special business techniques, analyses of the
market, forms, lists of customers, and all other information regarding the
manufacture or distribution of products, CONTRACTOR acknowledges that all such
information:
(1) belongs to FTS;
(2) constitutes specialized and highly confidential information
not generally known in the industry; and
(3) constitutes trade secrets of FTS.
Accordingly, CONTRACTOR recognizes and acknowledges that it is
essential to FTS to protect the confidentiality of such trade information.
(b) CONTRACTOR thus agrees to act as a trustee of such information and
of any other confidential information it acquires in connection with its
association with FTS. Further, as an inducement to FTS to retain CONTRACTOR as
a consultant, CONTRACTOR will hold such information in trust and confidence for
the use and benefit solely of FTS.
(c) During the term hereof, and for twelve (12) months thereafter,
CONTRACTOR shall not disclose such information to any person, firm, association,
or other entity for any reason or purpose whatsoever, unless such information
has already become common knowledge or unless CONTRACTOR is required to disclose
it by judicial process.
7. AGREEMENT NOT TO COMPETE. FTS has retained CONTRACTOR only for the
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purposes set forth in this AGREEMENT, and its relationship to FTS is that of an
independent contractor. During the term hereof, CONTRACTOR shall not, directly
or indirectly, enter into or in any manner take part in, any business,
profession, or other endeavor which competes with FTS in the sale of
communications systems, or such other products as FTS may add to its product
lines during the term of this AGREEMENT which CONTRACTOR is not authorized to
sell. CONTRACTOR shall not so compete as an employee, agent, independent
contractor, owner, or otherwise.
8. RESTRICTIVE COVENANT.
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(a) For a period of one (1) year after the expiration or termination of
this AGREEMENT for any reason, whether with or without cause, or for a period of
time equal to the length of CONTRACTOR's retention by FTS if such tenure has
been for less than one (1) year, CONTRACTOR will not, directly or indirectly,
contact any then-existing client or customer of FTS for the purpose of selling
wireless communications products or services on behalf of any other person,
firm, company, or corporation.
(b) The parties acknowledge that they have attempted to limit
CONTRACTOR's right to compete only to the extent necessary to protect FTS from
unfair competition. However, the parties hereby agree that, if the scope or
enforceability of the restrictive covenant is in any way disputed at any time, a
court or other trier of fact may modify and enforce the covenant to the extent
that it believes the covenant to be reasonable under the circumstances existing
at that time.
(c) CONTRACTOR further acknowledges that: 1) in the event this
AGREEMENT with FTS terminates for any reason, CONTRACTOR will be able to earn a
livelihood without violating the foregoing restrictions; and 2) that
CONTRACTOR's ability to earn a livelihood without violating such restrictions,
is a material condition to its retention by FTS.
9. WARRANTY AGAINST PRIOR EXISTING RESTRICTIONS. CONTRACTOR represents and
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warrants to FTS that it is not a party to any agreement containing a
non-competition clause or other restriction with respect to:
(a) the services which it is required to perform hereunder; or
(b) the use or disclosure of any information directly or indirectly
related to FTS's business, or to the services it is required to render pursuant
hereto.
10. PROHIBITION AGAINST ASSIGNMENT. CONTRACTOR agrees, for itself and on
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behalf of its successors, or any person, persons or entities claiming under it
by virtue hereof, that this AGREEMENT and the rights, interests, and benefits
hereunder cannot be assigned, transferred, pledged or hypothecated in any way
and shall not be subject to execution, attachment, or similar process. Any such
attempt to do so, contrary to the terms hereof, shall be null and void and shall
relieve FTS of any and all obligations or liability hereunder.
11. SEVERABILITY. If any provision, paragraph or sub-paragraph of this
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AGREEMENT is adjudged by any court of law to be void or unenforceable, in whole
or in part, such adjudication shall not be deemed to affect the validity of the
remainder of the AGREEMENT, including any other provision, paragraph, or
sub-paragraph. Each provision, paragraph, and sub-paragraph of this AGREEMENT
is declared to be separable from every other provision, paragraph, and
sub-paragraph and constitutes a separate and distinct covenant.
12. TERMINATION OF AGREEMENT. This AGREEMENT shall continue from
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month-to-month for a period of twelve (12) months. AGREEMENT may be terminated
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with cause by either party upon the giving of two (2) weeks' written notice,
sent by registered or certified mail, return receipt requested, to the addresses
listed in the Notice paragraph of this AGREEMENT.
13. RIGHTS UPON TERMINATION. Upon the expiration or termination of this
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AGREEMENT for any reason, whether with or without cause, CONTRACTOR shall be
entitled only to accrued commissions on those contracts already signed and
accepted by FTS prior to the effective date thereof. Such accrued commissions
shall be paid to CONTRACTOR within thirty (30) days of FTS's receipt of the
applicable invoice amounts.
14. MODIFICATION AND WAIVER. No waiver or modification of this AGREEMENT
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shall be valid unless it is in writing and signed by both FTS and XXXXXXXXXX.
00, XXXXXXX XXXXXX. This AGREEMENT shall be binding upon, and inure to
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the benefit of, FTS and its successors, assigns, heirs, legal representatives,
executors, and administrators.
16. ATTORNEYS' FEES. If either party hereto shall breach any of the terms
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hereof, such party shall pay to the non-defaulting party all of the
non-defaulting party's costs and expenses, including attorneys' fees, incurred
by such party in enforcing the terms of this AGREEMENT.
17. COMPLETE UNDERSTANDING. This AGREEMENT constitutes the entire AGREEMENT
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between the parties with respect to the subject matter hereof. This AGREEMENT
supersedes any and all other Agreements, whether oral or in writing, between the
parties with respect to the subject matter hereof.
18. GOVERNING LAW. This AGREEMENT shall be subject to, and governed by, the
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laws of the Commonwealth of Pennsylvania.
19. HEADINGS. The headings in this AGREEMENT are inserted for convenience
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only and shall not be considered in interpreting the provisions hereof.
20. NOTICE. All notices shall be given in writing and sent by registered or
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certified mail, return receipt requested, and shall be addressed to:
in the case of FTS:
Xx. Xxxxx Xxxxxxxxx, Chairman and CEO
FTS Apparel, Inc.
000 Xxxxxx Xxxxxx Xx., Xxxxx 0000
Xxxxxxx, XX 00000
Telephone: 000-000-0000
Fax: 000-000-0000
and in the case of CONTRACTOR:
Mr. Xxx Xxxxx
0000 Xxxx Xxxxx Xx.
Xx Xxxx, XX 00000
000-000-0000 (H)
21. COUNTERPARTS. This AGREEMENT may be executed in two or more
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counterparts, each of which shall be deemed an original but all of which
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together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this AGREEMENT on July 23rd ,2003
FTS APPAREL, INC. CONTRACTOR
By: /s/ Xxxxx Xxxxxxxxx By: /s/ Xxx Xxxxx
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Xxxxx Xxxxxxxxx Xxx Xxxxx
Chairman and CEO
