Exhibit 2.4 - Independent Contractor Agreement
INDEPENDENT CONTRACTOR AGREEMENT
THIS INDEPENDENT CONTRACTOR AGREEMENT (this "Agreement"), made and entered
into this 26th day of November, 2001, by and between Achieve Networks, Inc., a
Nevada corporation, with an address at Achieve Networks, Inc., c/o Pipeline
Technologies, Inc., Attn: Xxx Xxxxxxxx, President, 0000 Xxxxx Xxxxxx, Xxxxx Xxx
Xxxxxxx, Xxxxxxxxxxxx, XX 00000 (hereinafter "Company"), and Xxxx X. Xxxxxxx, an
individual, with an address at 0000 Xxxxxxx Xxxxx, Xxxxxx, XX 00000 (hereinafter
"Independent Contractor"):
1. SCOPE OF SERVICES
1.1. Services.
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Independent Contractor agrees to provide, and Company agrees to
accept, the following consulting services.
The Independent Contractor shall provide sales, marketing and
management advice, assistance and services, as may be reasonably
requested from time to time by the Company's board of directors.
The Consulting Services will include, without limitation, sales
and marketing, strategic project planning and implementation, and
special projects assignments. Independent Consultant shall work
on Company's matters on a full-time basis.
1.2. Conduct of Services.
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All work shall be performed in a workmanlike and professional manner.
1.3. Method of Performing Services.
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Independent Contractor shall have the right to determine the method,
details, and means of performing the work to be performed for Company.
Company shall, however, be entitled to exercise general power of
supervision and control over the results of work performed by
Independent Contractor to assure satisfactory performance, including
the right to inspect, the right to stop work, the right to make
suggestions or recommendations as to the details of the work, and the
right to propose modifications to the work. In addition, Independent
Contractor shall keep Company fully advised of Independent
Contractor's activities and actions.
1.4. Scheduling.
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The services provided by Independent Contractor are expected to
require all of Independent Contractor's available business time and
availability. Independent Contractor will use its best efforts to
accommodate work schedule requests as possible.
1.5. Reporting.
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Company and Independent Contractor shall develop appropriate
administrative procedures for coordinating with each other. Company
shall periodically provide Independent Contractor with informal
evaluations of Independent Contractor's performance.
1.6. Place of Work.
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Independent Contractor will perform its work for Company primarily at
Independent Contractor's premises except when such projects or tasks
require Independent Contractor to travel off site or attend meetings
at the Company's offices.
1.7. Future Services.
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Notwithstanding anything in this Agreement to the contrary, and
regardless of termination of this Agreement by either party for any
reason, Independent Contractor agrees to make its services available,
when, as and to the extent required by Independent Contractor, to
complete or provide follow-on support for any work or projects to
which Independent Contractor at any time materially contributed
pursuant to this Agreement. Unless otherwise agreed, such services
shall be made available at Independent Contractor's actual labor rates
otherwise applicable to services provided to Company pursuant to this
Agreement, calculated on a per diem basis, plus reasonable and actual
costs of materials provided or consumed in providing such services.
2. TERM AND TERMINATION
2.1. Term.
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The term of this Agreement shall commence on the date set forth above
and shall continue for a period of one year; provided that six months
after the date set forth above the Company shall provide Independent
Contractor with a Formal Evaluation, pursuant to which Company, in its
sole discretion, can terminate this Agreement on thirty (30) days'
prior written notice if Company determines that termination is in the
best interest of the Company.
2.2. Termination.
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During the first 6 months of this Agreement, this Agreement may not be
terminated by the Company. Thereafter, this Agreement may be
terminated by either party upon written notice, if the other party
breaches any obligation provided hereunder and the breaching party
fails to cure such breach within the 30-day period; provided that the
cure period for any failure of Company to pay fees and charges due
hereunder shall be 15 days from the date of receipt by Company of
notice of such failure.
2.3. Remaining Payments.
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Within 60 days of termination of this Agreement for any reason,
Independent Contractor shall submit to Company an itemized invoice for
any fees or expenses theretofore accrued under this Agreement.
3. FEES, EXPENSES, AND PAYMENT
3.1. Fees.
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In consideration of the services to be performed by Independent
Contractor, Independent Contractor shall be entitled to compensation
of Fifteen Thousand Dollars ($15,000.00) per month, with applicable
prorations for partial months. Payments due under this Agreement shall
be made on he first day of each month.
3.2. Reimbursement of Expenses.
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In addition to the foregoing, Company shall pay Independent Contractor
its actual out-of-pocket expenses as reasonably incurred by
Independent Contractor in furtherance of its performance hereunder.
Independent Contractor agrees to provide Company with access to such
receipts, ledgers, and other records as may be reasonably appropriate
for Company or its accountants to verify the amount and nature of any
such expenses. Expenses shall be reimbursed within ten (10) days after
receipt of Independent Contractor's invoices. Notwithstanding the
foregoing, expenses shall not exceed $500 per month without a prior
approval of the Board of Directors of the Company.
4. ISSUANCE OF SHARES OF COMPANY STOCK
4.1. Initial Shares.
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On the date hereof, as additional consideration for the services to be
performed by the Independent Contractor hereunder and in consideration
of the Independent Contractor's timely execution of this Agreement,
the Company shall issue to the Independent Contractor two hundred
thousand (200,000) shares of the Company's common stock, par value
$0.001 ("Shares"), which Shares have not been and will not be
registered under the Securities Act of 1933 or any state securities
laws.
4.2. Performance Bonus.
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During the period of eighteen (18) months from the date hereof
("Earn-out Term"), the Independent Contractor shall be entitled to
receive one additional Share for each one dollar ($1.00) of revenue
actually collected by the Company attributable to customers generated
by the efforts of the Independent Contractor, up to a maximum of five
hundred fifty thousand (550,000) additional Shares, which Shares have
not been and will not be registered under the Securities Act of 1933
or any state securities laws. The determination of the number of
Shares issuable shall be made by the Company within fifteen (15) days
of the end of each month of the Earn-out Term based on the actual
collections of the preceding month and the Company shall give the
Independent Contractor written notice of such determination, including
a statement of all collections from customers generated by the efforts
of the Independent Contractor. If there is a disagreement about the
number of Shares issuable, the parties shall endeavor in good faith
the resolve the same and the Independent Contractor shall be permitted
to review and audit the relevant records of the Company at his own
cost and expense. If the Independent Contractor does not request an
inspection of the Company's books and records within thirty (30) days
after receipt of the Company's determination of the number of Shares
issuable, the Company's determination shall be conclusive and binding.
Within fifteen (15) days of a final determination of the number Shares
to be issued for each month of the Earn-out Term, whether by consent
of the parties, lapse of time or otherwise, certificates representing
the Shares shall be delivered to the Independent Contractor, which
Shares shall bear all appropriate legends.
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5. RESPONSIBILITIES OF CONSULTANT FOR TAXES AND OTHER MATTERS
5.1. Taxes.
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As an independent contractor, Independent Contractor shall pay and
report all federal and state income tax withholding, social security
taxes, and unemployment insurance applicable to Independent
Contractor. Independent Contractor shall not be entitled to
participate in health or disability insurance, retirement benefits, or
other welfare or pension benefits (if any) to which employees of
Company may be entitled.
6. CONFIDENTIALITY
6.1. Restrictions.
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In addition to any obligations contained in a separate confidentiality
or non-disclosure agreement between the parties, Independent
Contractor acknowledges that in order to perform the services called
for in this Agreement, it shall be necessary for Company to disclose
to Independent Contractor certain Trade Secret(s) of Company.
Independent Contractor agrees that it shall not disclose, transfer,
use, copy, or allow access to any such Trade Secrets to any third
parties, except as authorized by Company.
6.2. Trade Secrets Defined.
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As used herein, the term "Trade Secret(s)" shall mean any scientific
or technical data, information, design, process, procedure, formula,
or improvement that is commercially valuable to Company and not
generally known in the industry.
7. RIGHTS IN WORK PRODUCT
7.1. Ownership of Work Product.
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All Work Product shall be considered work(s) made by Independent
Contractor for hire for Company and shall belong exclusively to
Company and its designees. If by operation of law any of the Work
Product, including all related intellectual property rights, is not
owned in its entirety by Company automatically upon creation thereof,
then Independent Contractor agrees to assign, and hereby assigns, to
Company and its designees the ownership of such Work Product,
including all related intellectual property rights.
7.2. Incidents and Further Assurances.
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Company may obtain and hold in its own name copyrights, registrations,
and other protection that may be available in the Independent
Contractor. Independent Contractor agrees to provide any assistance
required to perfect such protection. Independent Contractor agrees to
take sure further actions and execute and deliver such further
agreements and other instruments as Company may reasonably request to
give effect to this Section 6.
7.3. Pre-existing Materials.
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Independent Contractor may include in the Work Product pre-existing
work or materials only if either they are provided by Company or if
they are owned or licensable without restriction by Independent
Contractor. To the extent that pre-existing work or materials owned or
licensed by Independent Contractor are included in the Work Products,
Independent Contractor shall identify any such work or materials prior
to commencement of the Services involving such work or materials.
Independent Contractor grants to Company (as an exception to the
transfer and assignment provided in the first paragraph of this
Section) an irrevocable, nonexclusive, worldwide, royalty-free right
and license to use, execute, reproduce, display, perform, and
distribute (internally and externally) copies of, and prepare
derivative works based upon, such work and materials, and the right to
authorize others to do any of the foregoing.
7.4. Work Product Defined.
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As used herein, the term "Work Product" shall mean any programming,
documentation, data compilations, reports, and any other media,
materials, or other objects produced as a result of Independent
Contractor's work or delivered by Independent Contractor in the course
of performing that work.
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8. ASSURANCES
8.1. No Conflict.
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Independent Contractor represents and warrants that it has no
obligations to any third party which will in any way limit or restrict
its ability to perform consulting services to Company hereunder.
Independent Contractor agrees that it will not disclose to Company,
nor make use in the performance of any work hereunder, any trade
secrets or other proprietary information of any third party, unless
Independent Contractor may do so without Independent Contractor or
Company incurring any obligation (past or future) to such third party
for such work or any future application thereof.
8.2. No Recruiting.
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During the term of this Agreement and for a period of six (6) months
thereafter, Independent Contractor shall not knowingly solicit,
entice, or persuade any employees of Company to terminate their
employment with Company for any reason.
9. MISCELLANEOUS
9.1. Force Majeure.
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Independent Contractor shall not be liable to Company for any failure
or delay caused by events beyond Independent Contractor's control,
including, without limitation, Company's failure to furnish necessary
information, sabotage, failure or delays in transportation or
communication, failures or substitutions of equipment, labor disputes,
accidents, shortages of labor, fuel, raw materials or equipment, or
technical failures.
9.2. Governing Law.
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This Agreement shall be governed and construed in all respects in
accordance with the laws of the State of Florida as they apply to a
contract entered into and performed in that State.
9.3. Independent Contractors.
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The parties are and shall be independent contractors to one another,
and nothing herein shall be deemed to cause this Agreement to create
an agency, partnership, or joint venture between the parties. Nothing
in this Agreement shall be interpreted or construed as creating or
establishing the relationship of employer and employee between Company
and either Independent Contractor or any employee or agent of
Independent Contractor.
9.4. Notices.
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All notices required or permitted hereunder shall be in writing
addressed to the respective parties as set forth herein, unless
another address shall have been designated, and shall be delivered by
hand or by registered or certified mail, postage prepaid.
9.5. Entire Agreement.
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This Agreement constitutes the entire agreement of the parties hereto
and supersedes all prior representations, proposals, discussions, and
communications, whether oral or in writing. This Agreement may be
modified only in writing and shall be enforceable in accordance with
its terms when signed by the party sought to be bound. This Agreement
is delivered pursuant to Section 5.13 of the Share Exchange Agreement
and Plan of Reorganization between Company and Independent Contractor
and certain other parties dated September 27, 2001, as amended.
9.6. Guarantee of Payments due Contractor.
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Pipeline Technologies is the majority shareholder of the Company. To
induce Contractor to enter into this Agreement and for other
consideration, Guarantor agrees to guarantee the performance of the
Company's obligations under this Agreement. This is a primary,
irrevocable, and unconditional guaranty of payment and performance.
This guaranty will remain in effect regardless of any modification or
extension of this Agreement. Guarantor's obligations will not be
diminished by the discharge, limitation, or modification of the
Company's obligations in any bankruptcy or other debtor relief
proceedings.
9.7. Performance of Share Exchange Agreement.
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The parties acknowledge and agree that this Agreement is being entered
into contemporaneously with that certain Share Exchange Agreement and
Plan of Reorganization, as amended, dated effective September 27, 2001
(the "Exchange Agreement"). If any of the terms or provisions of the
Exchange Agreement or any documents related thereto are breached in
any respect, this Agreement may be immediately terminated and of no
further force or effect.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives, on the date and year first above
written.
COMPANY: ACHIEVE NETWORKS, INC.
By: /s/ Xxxx X. Xxxxxxx
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Title: President
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Date: November 26 , 2001
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INDEPENDENT CONTRACTOR: /s/ Xxxx X. Xxxxxxx
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XXXX X. XXXXXXX
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