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Independent Contractor Agreement
This Independent Contractor Agreement (the “Agreement”), is entered into this ___ day of January, 2015, by and between Epoxy, Inc. (the “Company”), having a principal address at 8250 W. Charleston Blvd., Suite 110, Las Vegas, Nevada 89117, and Scherf Corporation (the “Contractor”), having an address of P.O. Box 80816, Las Vegas, Nevada 89180-0816.
1. ENGAGEMENT AND DURATION
1.1 The Company hereby engages the services of the Contractor to provide Public Relations services for the Company, and the Contractor hereby accepts such engagement and agrees to perform the services to the best of its ability and in accordance with terms and conditions of this Agreement.
1.2 The initial term of this Agreement shall commence upon execution of this Agreement, and shall end on December 31, 2015. This Agreement can be renewed for successive one (1) year terms upon mutual agreement of the parties.
1.3 Contractor shall perform all work designated under the terms of this Agreement at the location of the Company’s corporate headquarters, or at such other locations as the Company and Contractor jointly see fit.
2. DUTIES
2.1 The Contractor shall perform various duties typically incumbent upon the public relations department of a small publicly traded company. Specific duties shall include, but are not limited to, communications with shareholders of the Company, drafting and placing press releases and articles pertaining to the Company’s business in the appropriate platforms, and introduction to venture capital firms, hedge funds, etc. for potential investment in the Company.
The Contractor will report directly to the members of the Board of Directors when requested.
2.2 The Contractor shall use his best efforts to promote the interests of the Company and, to the extent necessary to discharge the responsibilities assigned to the Contractor, perform faithfully and efficiently such responsibilities.
2.3 The Contractor will, subject to the terms of this agreement, comply promptly and faithfully with the Company’s reasonable instructions, directions, requests, rules and regulations as may be expected of a contractor. The Company shall not be deemed to have waived the right to require the Contractor to perform any duties hereunder by assigning the Contractor to any other duties or services or by assigning another individual to perform the duties of the Contractor.
2.4 The Contractor’s performance of personal, civil, or charitable activities or the Contractor’s service on any boards or committees as of the date of this Agreement or at any future time during the term of this Agreement shall not be deemed to interfere with the performance of the Contractor’s services and responsibilities to the Company pursuant to this Agreement.
2.5 In the event of a change of control of the Company, the Contractor shall continue to serve the Company in the same capacity and have the same authority, responsibilities and status as he had as of the date immediately prior to the change of control. Following a change of control, the Contractor’s services shall be performed at such location as may be mutually agreed upon between the Company and the Contractor. For the purposes of this Agreement, a “change of control” shall be deemed to have occurred when:
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(a)
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a person other than the current control person(s) of the Company becomes a control person; or
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(b)
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a majority of the directors elected at any annual or special meeting of the Shareholders of the Company are not individuals nominated by the Company’s then-incumbent Board of Directors.
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3. REMUNERATION AND BENEFITS
3.1 Public Relations Compensation. The Company shall compensate the Contractor for all public relations work (exclusive of venture capital introduction) at the rate equal to 0.5% of the increase in the market cap of the Company from one fiscal quarter to the next. Said compensation shall be paid in the form of common shares of the Company, the per-share value of which shall be determined by the average closing price of the Company’s common stock over the last ten trading days of the fiscal quarter to be compensated for. Said compensation shall be paid within fifteen (15) days of the close of each fiscal quarter.
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3.2 Venture Capital Compensation. The Company shall compensate the Contractor for all venture capital introduction at the rate equal to 3.0% of any and all funds received as investments by any venture capital firm, hedge fund, or other investor introduced by the Contractor to the Company. Said compensation shall be paid in the form of common shares of the Company, the per-share value of which shall be determined by the average closing price of the Company’s common stock over the last ten trading days of the fiscal quarter to be compensated for. Said compensation shall be paid within fifteen (15) days of the close of each fiscal quarter.
3.3 Expense Reimbursement. Contractor shall be reimbursed by Company for all documented and reasonable expenses incurred by Contractor as a result of the performance of his duties under this Agreement.
3.4 Taxes and Insurance. Contractor expressly agrees that his status with the Company is that of an Independent Contractor, as those terms are defined within the Internal Revenue Code.
4. RESTRICTIVE COVENANTS
4.1 Delivery of Records
4.1.1 Upon the termination of the Contractor’s employment with the Company, the Contractor will deliver to the Company all books, records, lists, brochures and other property belonging to the Company or developed in connection with the business of the Company.
4.2 Confidentiality
4.2.1 The term “Confidential Information” means any and all information concerning the business of the Company which the Contractor may receive or develop as a result of his/her employment. All documents, procedures, policies, programs, reports, plans, proposals, technical information, know-how, systems and other information unique to the Company, its customers or principals, received or developed by the Contractor are the property of the Company and/or such parties. The Contractor shall not make any unauthorized disclosure or use of and shall use his/her best efforts to prevent publication or disclosure or use of such confidential information.
4.2.2 The Contractor acknowledges that any unauthorized disclosure, reproduction or use of such Confidential Information by the Contractor may result in material damages to the Company and consents to the issuance of an injunction or other equitable remedy to prohibit, prevent or enjoin unauthorized disclosure or use of Confidential Information by the Contractor.
4.2.3 Except as authorized by the Company, the Contractor will not:
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(a)
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duplicate, transfer or disclose nor allow any other person to duplicate, transfer or disclose any of the Company’s Confidential Information;
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(b)
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use the Company’s Confidential Information without the prior written consent of the Company; or
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(c)
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incorporate, in whole or in part, within any domestic or foreign patent application any proprietary or Confidential Information disclosed by the Company.
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4.2.4 The Contractor will safeguard all Confidential Information at all times so that it is not exposed to or used by unauthorized persons, and will exercise at least the same degree of care to protect the Contractor’s own Confidential Information.
4.2.5 The restrictive obligations set forth above shall not apply to the disclosure or use of information which:
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(a)
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is or later becomes publicly known under circumstances involving no breach of this agreement by the Contractor;
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(b)
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is already known to the Contractor at the time of receipt of the Confidential Information;
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(c)
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is lawfully made available to the Contractor by a third party; or
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(d)
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is independently developed by and Contractor of the Contractor who has not been privy to the Confidential Information provided by the Company.
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4.2.6 If the Contractor contends that any such information disclosed to him by the Company is in the public domain or was in the possession of the Contractor prior to such disclosure and not under an obligation of confidence, the Contractor will, within ten days of receipt by the Contractor of such disclosure give written notice of such contention to the Company, which written notice shall include a complete identification of the information in question and the derivation thereof, including particulars of any contract in which the Contractor or any other person has made use of such concept or information. If the Contractor has not within ten days of receipt by the Contractor of such disclosure given such written notice to the Company, then it shall be conclusively presumed that all information communicated by the Company to the Contractor concerning the development originated with the Company and constitutes secret and confidential information and know-how.
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4.2.7 The Contractor hereby certifies that he has not brought and will not bring with the Contractor to the Company or use while performing his Contractor duties for the Company any materials or documents of a former employer of the Contractor which are not generally available to the public except the know-how to which the right to use has duly licensed to the Company by such former employer. The Contractor understands that while employed by the Company, the employer is not to breach any obligation of confidence or duty and the Contractor agrees that he will fulfill all such obligations during his employment with the Company.
4.2.8 No patent right or licenses are guaranteed by this agreement and patent rights or licenses now or developed during the term of this agreement are the property of this Company. The disclosure of Confidential Information under this agreement shall not result in any obligation for either party to grant any rights in its patent rights or confidential information, and no other obligations of any kind are assumed by or implied against either party, except for those stated in this agreement.
4.2.9 The provisions of section 4.2 shall survive the termination of this agreement.
5. TERMINATION
5.1 The Company may terminate the Contractor’s relationship under this Agreement at any time upon the occurrence of any of the following events:
(a) the Contractor acting unlawfully, dishonestly, negligently, incompetently or in bad faith;
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(b)
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the conviction of the Contractor of a felony; or
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(c)
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the breach or default of any term of this agreement by the Contractor if such breach or default has not been remedied to the satisfaction of the Company, acting responsibly, within 14 days after written notice of the breach of default has been delivered by the Company to the Contractor.
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5.2The Contractor may terminate his obligations under this agreement:
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(a)
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upon the default or breach of any term of this Agreement by the Company if such breach or default has not been remedied or is not being remedied to the satisfaction of the Contractor, acting reasonably, within 14 days after written notice of the breach or default has been delivered by the Contractor to the Company; or
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(b)
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at the will of the Contractor.
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5.3 In the event of the termination of employment pursuant to subsection 5.1(a), (b), or (c) of this agreement, the Company shall pay to the Contractor the full amount of compensation accrued pursuant to section 3.0 of this agreement as of the date of termination. In the event of the termination of the Contractor’s employment under this agreement pursuant to section 5.2(a) of this Agreement, the Company shall pay within ten days of termination to the Contractor all compensation to be paid to the Contractor under this agreement for the remainder of the term of this agreement. In the event of the termination of employment pursuant to subsection 5.2(b) of this agreement, the Company shall pay to the Contractor the full amount of compensation accrued pursuant to section 3.0 of this agreement as of the date of termination.
5.4The rights of the Company and the Contractor under this section 5 are in addition to and not in derogation of any other remedies which may be available to the Company or the Contractor at law or in equity.
6.PERSONAL NATURE
6.1This agreement is personal and is entered into based upon the singular skill, qualifications and experience of the Contractor.
7.WAIVER
7.1No consent or waiver, express or implied, by any party to this agreement of any breach or default by the other party in the performance of its obligations under this agreement or of any of the terms, covenants or conditions of this agreement shall be deemed or construed to be a consent or waiver of any subsequent or continuing breach or default in such party’s performance or in the terms, covenants and conditions of this agreement. The failure of any party to this agreement to assert any claim in a timely fashion for any of its rights or remedies under this agreement shall not be construed as a waiver of any such claim and shall not serve to modify, alter or restrict any such party’s right to assert such claim at any time thereafter.
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8.NOTICES
8.1Any notice relating to this agreement or required or permitted to be given in accordance with this agreement shall be in writing and shall be personally delivered or mailed by registered mail, postage prepaid to the address of the parties set out on the first page of this agreement. Any notice shall be deemed to have been received if delivered, when delivered, and if mailed, on the fifth day (excluding Saturdays, Sundays and holidays) after the mailing thereof. If normal mail service is interrupted by strike, slowdown, or other cause, a notice sent by registered mail will not be deemed to be received until actually received and the party sending the notice shall utilize any other services which have not been so interrupted or shall deliver such notice in order to ensure prompt receipt thereof.
8.2Each party to this agreement may change its address for the purpose of this section 8.0 by giving written notice of such change in the manner provided for in section 8.1.
9.APPLICABLE LAW
9.1This agreement shall be governed by and construed in accordance with the laws of the State of Nevada and the federal laws of the United applicable therein, which shall be deemed to be the proper law hereof.
10. SEVERABILITY
10.1If any provision of this agreement for any reason be declared invalid, such declaration shall not effect the validity of any remaining portion of the agreement, which remaining portion shall remain in full force and effect as if this agreement had been executed with the invalid portion thereof eliminated and is hereby declared the intention of the parties that they would have executed the remaining portions of this agreement without including therein any such part, parts or portion which may, for any reason, be hereafter declared invalid.
11.ENTIRE AGREEMENT
11.1This agreement constitutes the entire agreement between the parties hereto and there are no representations or warranties, express or implied, statutory or otherwise other than set forth in this agreement and there are no agreements collateral hereto other than as are expressly set forth or referred to herein. This agreement cannot be amended or supplement except by a written agreement executed by both parties hereto, provided that if the Company becomes listed on any U.S. stock market or quotation system, the terms of this agreement may upon mutual agreement be renegotiated.
12.ARBITRATION
12.1 In the event of any dispute arising in the determination of the compensation to be paid pursuant to section 5 or of the Contractor’s salary as set out in this agreement, the matter in dispute shall be referred to the auditors of the Company for determination. If the auditors cannot agree on a determination of the matter in dispute within ten days following the referral to them, the matter in dispute shall be referred to a single arbitrator agreed upon by the parties, or if no single arbiter can be agreed upon, an arbiter or arbiters shall be selected in accordance with the rules of the American Arbitration Association and such dispute, difference or disagreement shall be settled by arbitration in accordance with the then prevailing commercial rules of the American Arbitration Association, and judgment upon the award rendered by the arbiter may be entered in any court having jurisdiction thereof.
13.NON-ASSIGNABILITY
13.1This agreement shall not be assigned by either party to this agreement without the prior written consent of the other party to this agreement.
14.BURDEN AND BENEFIT
14.1This agreement shall enure to the benefit of and be binding upon the parties hereto and their respective heirs, executors, administrators, successors and permitted assigns.
15.COUNTERPART
15.1This Agreement may be executed in counterpart and such counterparts together shall constitute one and the same instrument and notwithstanding the date of execution shall be deemed to bear the date as set out on the first page of this agreement.
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IN WITNESS WHEREOF the parties hereto have duly executed this Independent Contractor Agreement as of the date set out on the first page of this agreement.
EPOXY, INC. SCHERF CORPORATION
(“Company”) (“Contractor”)
David Gasparine, President Dietmar Scherf, President
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