Exhibit 4.3
INDEPENDENT CONTRACTOR AGREEMENT
THIS INDEPENDENT CONTRACTOR AGREEMENT (this "Agreement"), dated as of March
13, 2003, between Palomar Enterprises, Inc., a Nevada corporation (the
"Company"), and Xxxxx Xxxxx ("Consultant"), an individual.
WITNESSETH:
WHEREAS, Company desires to retain Consultant to consult and advise the
Company in the areas of corporate image advertising, business development, and
business strategy and consultant in connection the Company's business, namely,
the nutraceutical industry is willing to provide such services;
NOW, THEREFORE, in consideration of the mutual undertakings contained
herein, the parties agree as follows:
Consulting Arrangement. The Company hereby engages Consultant as an
independent contractor and not as an employee, to render consulting services to
the Company as hereinafter provided and Consultant hereby accepts such
engagement for a period commencing on March 2003 and ending on the 31st day of
March 2004. Consultant agrees that Consultant will not have any authority to
bind or act on behalf of the Company. Consultant shall at all times be an
independent contractor hereunder, rather than an agent, coventurer, employee or
representative of the Company. The Company hereby acknowledges and agrees that
Consultant may engage directly or indirectly in other businesses and ventures
and shall not be required to perform any services under this Agreement when, or
for such periods in which, the rendering of such services shall unduly interfere
with such other businesses and ventures, providing that such undertakings do not
completely preempt Consultant's availability during the term of this Agreement.
Neither Consultant nor his employees will be considered by reason of the
provisions of this Agreement or otherwise as being an employee of the Company or
as being entitled to participate in any health insurance, medical, pension,
bonus or similar employee benefit plans sponsored by the Company for its
employees. Consultant shall report all earnings under this Agreement in the
manner appropriate to its status as an independent contractor and shall file all
necessary reports and pay all taxes with respect to such payments.
SERVICES
1. Subject to the terms and conditions of this Agreement, the Company
hereby engages the Consultant, and Consultant hereby accepts the engagement, to
provide advice, analysis and recommendations (the "Services") to the Company
with respect to the following:
A. Identifying prospective strategic partners and strategic alliances;
B. Due diligence processes and capital structures and filing issues;
C. Periodic reporting as to developments concerning the industry which
may be relevant or of interest or concern to the Client or the
Client's business;
D. Developing and managing Strategic Planning issues;
E. Providing Project Management services for various projects;
F. Assisting in developing a corporate image for potential
advertisements;
G. Consulting on alternatives to enhance operational growth of the
Company.
During the term of this Agreement, Consultant shall render such consulting
services as the Company from time to time reasonably requests, which services
shall include but not be limited to those rendered by Consultant to Company
prior to the date hereof; provided that:
(a) To the extent practicable such services shall be furnished only at
such time and places as are mutually satisfactory to the Company and
Consultant; and
(b) Consultant shall devote as much time as needed in performing such
services and shall not be required to perform any services hereunder
while Consultant is on vacation or suffering from an illness.
2. Compensation and Expenses. For the Services provided by the Consultant,
the Company (i) shall compensate the Consultant by delivering to the Consultant,
not later than March 13, 2003, one million (1,000,000) shares of the common
stock of the Company ("Common Stock") that is Freely Tradeable (as hereinafter
defined). "Freely Tradeable" means shares that may be sold at any time by the
Consultant free of any contractual or other restriction on transfer and which
have been appropriately listed or registered for such sale on all securities
markets on any shares of the Common Stock are currently so listed or registered;
and (ii) the Company shall be responsible for the payment of the reasonable
out-of-pocket costs and expenses of Consultant incurred prior to, or on or after
the date of this Agreement, in connection with its engagement under this
Agreement, including, but not limited to, reasonable fees and disbursements of
counsel for Consultant, travel and related expenses, document production and
computer database charges. The Company shall reimburse Consultant for such costs
and expenses as they are incurred, promptly after receipt of a request for
reimbursement from Consultant.
3. Successors and Assigns. This Agreement is binding upon and inures to the
benefit of the Company and its affiliates, successors and assigns and is binding
upon and inures to the benefit of Consultant and his successors and assigns;
provided that in no event shall Consultant's obligations to perform the Services
be delegated or transferred by Consultant without the prior written consent of
the Company.
4. Term. This Agreement shall commence on the date hereof and, unless
sooner terminated in accordance with the provisions of Section 6 hereof, shall
expire on March 13, 2003. However, the Agreement may be extended by mutual
written consent.
5. Termination. Either the Company or Consultant may terminate this
Agreement for material breach upon at least thirty (30) days prior written
notice specifying the nature of the breach, if such breach has not been
substantially cured within the thirty (30) day period.
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6. Independent Contractor Relationship. Consultant and the Company are
independent contractors and nothing contained in this Agreement shall be
construed to place them in the relationship of partners, principal and agent,
employer/employee or joint ventures. Neither party shall have the power or right
to bind or obligate the other party, nor shall it hold itself out as having such
authority.
7. Indemnification. Company shall indemnify and hold harmless the
Consultant from and against any and all losses, damages, liabilities, reasonable
attorney's fees, court costs and expenses resulting or arising from any
third-party claims, actions, proceedings, investigations, or litigation relating
to or arising from or in connection with this Agreement, or any act or omission
by Company.
8. Notice. For the purpose of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been duly given (i) when delivered, if personally delivered, (ii) when sent
by facsimile transmission, when receipt therefore has been duly received, or
(iii) when mailed by United States registered mail, return receipt requested,
postage prepaid, or by recognized overnight courier, addressed set forth in the
preamble to this Agreement or to such other address as any party may have
furnished to the other in any writing in accordance herewith, except that
notices of change of address shall be effective only upon receipt.
9. Miscellaneous. No provisions of this Agreement may be modified, waived
or discharged unless such waiver, modification or discharge is agreed to in
writing signed by authorized officers of each party. No waiver by either party
hereto of, or compliance with, any condition or provision of this Agreement to
be performed by such other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any prior or subsequent
time. No agreements or representations, oral or otherwise, express or implied,
with respect to the subject matter hereof have been made by either party which
are not set forth expressly in this Agreement. The validity, interpretation,
construction and performance of this Agreement shall be governed by the internal
laws of the State of Nevada. Any controversy arising under or in relation to
this Agreement shall be settled by binding arbitration in Las Vegas, Nevada in
accordance with the laws of the State of Nevada and the rules of the American
Arbitration Association.
10. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
11. Severability. If in any jurisdiction, any provision of this Agreement
or its application to any party or circumstance is restricted, prohibited or
unenforceable, such provision shall, as to such jurisdiction, be ineffective
only to the extent of such restriction, prohibition or unenforceability, without
invalidating the remaining provisions hereof and without affecting the validity
or enforceability of such provision in any other jurisdiction or its application
to other parties or circumstances. In addition, if any one or more of the
provisions contained in this Agreement shall for any reason in any jurisdiction
be held to be excessively broad as to time, duration, geographical scope,
activity or subject, it shall be construed, by limiting and reduction it, so as
to be enforceable to the extent compatible with the applicable law of such
jurisdiction as it shall then appear.
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IN WITNESS WHEREOF, this Consulting Agreement has been executed by the
Company and Consultant as of the date first written above.
Signature of Contractor
Name: Xxxxx Xxxxx
Address: 0000 X. Xxxxxx, Xxxx, XX 00000
Signature: /s/ Xxxxx Xxxxx
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Signature of Company
Name: Palomar Enterprises, Inc.
Address: 0000 X. Xxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Signature: /s/ Xxxxxxx Xxxxxxx
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