[EXHIBIT 10.2]
FORM OF
INDEPENDENT CONTRACTOR/CONSULTING AGREEMENT
THIS AGREEMENT is made and entered into as of the ____ day of
February, 2004 by and between KIWI Network Solutions, Inc.,
hereinafter referred to as "Client", with its principal place of
business at 0000 Xxxx Xxxxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxx
Xxxxxxxxxx, Xxxxxxx 00000 and hereinafter referred to as
"Consultant", with its principal place of Business.
RECITALS
A. WHEREAS, Client is a developed stage company; and
B. WHEREAS, the Consultant is generally knowledgeable in the
areas of identifying acquisition targets consistent with the
business operations of the Company and possesses experience in
merger structure, corporate image advertising, business
development and business strategy; and
C. WHEREAS, the Company wishes to engage the Consultant on a
nonexclusive basis as an independent contractor to utilize
Consultant's general acquisition experience and specific merger
structure experience for this type of Company, corporate image
D. WHEREAS, the Consultant is willing to be so retained on the
terms and conditions as set forth in the Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the promises and the mutual
agreements hereinafter set forth, the parties agree as follows:
1. Engagement. The Company hereby retains and engages Consultant
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to perform the following consulting services (the "Consulting
Services");
1.1 Duties of Consultant. The Consultant will provide such
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services and advice to the Company so as to assist the Company in
identifying acquisition targets for the Company and advise the
Company in structuring mergers or other acquisitions. Without
limiting the generality of the foregoing. Consultant will also
assist the Company in developing, studying and evaluating
acquisition proposals, prepare reports and studies thereon when
advisable, and assist in negotiations and discussions pertaining
thereof. Nothing contained herein constitutes a commitment on the
part of the Consultant to find an acquisition target for the
Company or, if such target is found, that any transaction will be
completed. Consultant will assist the Company in creating its
corporate image advertising, business development and business
strategy.
This Agreement is not a contract for listing services, and
nothing in this Agreement will require the Consultant to
negotiate on behalf of the Company with corporations that are
involved with listings or making a market in corporate securities
in the OTC markets.
2. Duties Expressly Excluded. This Agreement expressly excludes
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the Consultant from providing any and all capital formation
and/of public relation services to the Company inclusive of but
not limited to (i) direct or indirect promotion of the Company's
securities; (ii) assistance in making of a market in the
Company's securities; and (iii) assistance in obtaining debt
and/or equity financing. The Consultant shall not have the power
of authority to bind the Company to any transaction without the
Company's prior written consent.
3. Consideration. Client and Consultant agree that Consultant
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receive from the Client an initial payment of
a) __________________________shares of Clients common stock,
in advance, as consideration for the services rendered,
pursuant to this Agreement.
4. Term. This Agreement shall be effective for a term of one-year
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(1) year starting from the date first written above unless sooner
terminated upon mutual written agreement of the parties hereto.
5. Expenses. Consultant shall bear his out-of-pocket costs and
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expenses incident to performing the Consulting Services, without
a right of reimbursement from the Company unless such expenses
are pre-approved by the Company.
6. Consultant's Liability. In the absence of gross negligence or
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willful misconduct on the part of the Consultant or the
Consultant's breach of any terms of this Agreement, the
Consultant shall not be liable to the Company or to any officer,
director, employee, stockholder or creditor of the Company, for
any act or omission in the course of or in connection with the
rendering or providing of services hereunder. Except in those
cases where the gross negligence or willful misconduct of the
Consultant or the breach by the Consultant of any terms of this
Agreement is alleged and proven, the Company agrees to defend,
indemnify, and hold the Consultant harmless from and against any
and all reasonable costs, expenses and liability (including
reasonable attorney's fees paid in the defense of the Consultant)
which may is any way a result from services rendered by the
Consultant pursuant to or in any connections with the Agreement.
This indemnification expressly excludes any and all damages as a
result of any actions or statements, on behalf of the Company,
made by the Consultant without the prior approval or
authorization of the Company.
7. Company's Liability. The Consultant agrees to defend,
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indemnify, and hold the Company harmless from and against any and
all reasonable costs, expenses and liability (including
reasonable attorney's fees paid in defense of the Company) which
may in any way result pursuant to its gross negligence or willful
misconduct or in any connection with any actions taken or
statements made, on behalf of the Company, without the prior
approval or authorization of the Company or which are otherwise
in violation of applicable law.
8. Representations. The Consultant makes the following
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representation:
a. Consultant has no prior or existing legally binding
obligation that are in conflict with its entering into this
Agreement;
b. Consultant shall not offer or make payment of any
consideration to brokers, dealers, or others for purposes of
inducing the purchase, making of a market or recommendation for
the purchase of the Company's securities;
c. Consultant is not currently the subject of an
investigation or inquiry by the Securities and Exchange
Commission, the NASD, or any state securities commission;
d. Consultant's activities and operations fully comply
with now and will comply with in the future all applicable state
and federal securities law and regulation;
e. Consultant understands that, as a result of its
services, it may come to possess material non-public information
about the Company, and that is has implemented internal control
procedures designed to reasonably insure that it and none of its
employees, agents, Consultant or affiliates, trade in the
securities of client companies while in possession of material
non-public information;
f. During the Term of this Agreement and for a period
of two years thereafter, the Consultant shall treat as the
Company's confidential trade secrets all date, information,
ideas, knowledge and papers pertaining to the affairs of the
Company. Without limiting the generality of the foregoing, such
trade secrets shall include; the identity of the Company's
customers, suppliers and prospective customers and suppliers;
the identity of the Company's creditors and other sources of
financing; the Company's estimating and costing procedures and
the cost and gross prices charged by the Company for its
products; the prices or other consideration charged to or
required or the Company by any of its suppliers of potential
suppliers; the Company's sales and promotional policies; and all
information relating to entertainment programs or properties
being produced or otherwise developed by the Company. The
Consultant shall not reveal said trade secrets to others except
in the proper exercise of its duties for the Company, or use
their knowledge thereof in any way that would be detrimental to
the interest of the Company, unless compelled to disclose such
information by judicial or administrative process; provided,
however, that the divulging of information shall not be a breach
of this Agreement to the extent that such information was (i)
previously known by the party to which it is divulged, (ii)
already in the public domain, all through no fault of the
Consultant, or (iii) required to be disclosed by Consultant
pursuant to judicial or governmental order. The Consultant
shall also treat all information pertaining to the affairs of
the Company's suppliers and customers and prospective customers
and suppliers as confidential trade secrets of such customers
and suppliers and prospective customers and suppliers, and
g. Consultant agrees to notify the Company immediately
if, at any time, any of the representations and warranties made
by the Consultant herein are no longer true and correct or it a
breach of any of the representations and warranties made by the
Consultant herein occurs,
9. The Company makes the following representations:
a. The Company is not currently the subject of an
investigation or inquiry by the Securities and Exchange Commission
the NASD, or the state securities commission;
b. The Company is in good standing in its state of
incorporation;
c. The Company and its senior management are not aware of
any materially adverse events not previously disclosed in the
Company's annual and quarterly reports with the Securities and
Exchange Commission.
10. Entire Agreement. This Agreement embodies the entire
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agreement and understanding between the Company and the
Consultant and supersedes any and all negotiations, prior
discussions and preliminary and prior agreements and
understandings related to the primary subject matter hereof. This
Agreement shall not be modified except by written instrument duly
executed by each of the parties hereto.
11. Waiver. No waiver of any of the provisions of this
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Agreement shall be deemed, or shall constitute a waiver of any
other provisions, nor shall any waiver constitute a continuing
waiver. No waiver shall be binding unless executed in writing by
the party making the waiver.
12. Assignment and Binding Effect. This Agreement and the
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rights hereunder may not be assigned by the parties (except by
operation of law or merger and shall be binding upon and inure to
the benefit of the parties and their respective successors,
assigns and legal representative.
13. Notices. Any notice or other communication between the
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parties hereto shall be sufficiently given if sent by certified
or registered mail, postage prepaid, or faxed and confirmed at
the following locations:
Company: 0000 Xxxx Xxxxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
Consultant: ___________________________________________.
Or at such other locations as the addressee may have specified in
a notice duly given to the sender as provided herein. Such notice
or other communication shall be deemed to be given on the date of
receipt.
14. Severability. Every provision of this Agreement is intended
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to be severable. If any term of provision hereof is deemed
unlawful or invalid for nay reason whatsoever, such unlawfulness
or invalidity shall not affect the validity of this Agreement.
15. Governing Law. This Agreement shall be construed and
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interpreted in accordance with the laws of Nevada, without giving
effect to conflict of laws.
16. Headings. The headings of this Agreement are inserted solely
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for the convenience of reference and are not part of, and are not
intended to govern, limit or aid in the construction of any term
or provision hereof.
17. Further Acts. Each party agrees to perform any further acts
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and execute and deliver any further documents that may be
reasonably necessary to carry out the provisions and intent of
this Agreement.
18. Acknowledgement Concerning Counsel. Each party acknowledges
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that if had the opportunity to employ separate and independent
counsel of its own choosing in connections with this Agreement.
19. Independent Contractor Status. There is no relationship,
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partnership, agency, employment, franchise or joint venture
between the parties. The parties have no authority to bind the
other or incur any obligations on their behalf.
20. Counterparts. This Agreement may be executed simultaneously
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in two or more counterparts, each of which shall be deemed an
original but all of which together shall constitute one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first written above.
