EXHIBIT 10.24
INDEPENDENT CONTRACTOR AGREEMENT
THIS INDEPENDENT CONTRACTOR AGREEMENT, (the "Agreement") is entered into
and made effective as of this 12 day of May 2004 (the "Effective Date"), by and
between BRIGHTSTAR CORP., a Delaware corporation (the "Company"); BRIGHTSTAR DE
MEXICO, S.A. DE CV and XXXXXX XXXX XXXXXX ( "Contractor").
WITNESSETH:
WHEREAS, the Company is a distributor of wireless products and accessories
and a provider of value-added services in the wireless telecommunications
industry; and
WHEREAS, the Company desires for the Contractor, as an independent
contractor of the Company, to facilitate the sales of products in connection
with Radio Movil Dipsa S.A. de CV (Customer) in Mexico and Claro (Customer) in
Brazil.
WHEREAS, the Contractor desires to be retained by the Company as an
independent contractor to market, promote and sell the Company's Products within
the Territory, pursuant to the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the mutual promises contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
1, RECITALS. The above recitals are true and correct and same are
incorporated herein by this reference.
2. ENGAGEMENT
2.1. Engagement. The Company hereby engages the Contractor as an
independent contractor to actively market, promote and sell to customer the
Company's Products. The Contractor shall diligently and competently devote his
full time, skill and attention in performing his obligations hereunder. Without
limiting the foregoing, and pursuant to the Company's policies in effect from
time to time, the Contractor shall (a) solicit and procure orders with the
Customer and (b) render such other services as may be necessary to market and
promote the Products to Customers in Mexico and Brazil including, without
limitation, attending meetings and conventions and participate in Company
promotions at the request of the Company.
2.2. Terms of Sale. The Company shall have the exclusive right to
set the pricing and all other terms relative to the sale of its Products and may
amend same from time to time in its sole and absolute discretion.
2.3. Territory. The Company may from time to time, and in its sole
and absolute discretion modify the Territory in which the Contractor shall
market, promote and sell the Company's Products.
3. COMPENSATION. In consideration for his services hereunder, Company
shall pay to Contractor, on the 15th business day after the end of the quarter,
a commission based on an agreed upon fee established per transaction in
connection with sales of products to the Customer.
4. EXPENSES. The Contractor shall be solely responsible for all expenses
incurred by the Contractor in the course of providing the services hereunder,
and the Company shall have no responsibility or liability for any expenses
incurred by the Contractor in performing his obligations hereunder.
5. TERM. The term of this Agreement shall commence on the Effective Date
and shall continue for a period of one (1) year. Unless either party provides
the other party with fifteen (15) days prior written notice of non-renewal prior
to the end of the then-current term, then this Agreement shall renew for
successive one (1) year term(s) (each a "Renewal Term"). The Initial Term,
together with all Renewal Terms, if any, collectively referred to as the "Term".
Notwithstanding the foregoing, the Company may terminate this Agreement, without
cause, upon fifteen (15) days prior written notice, and upon a breach by the
Contractor of his obligations under this Agreement, as determined in the
reasonable discretion of the Company, the Company may immediately terminate this
Agreement without prior notice.
6. INDEPENDENT CONTRACTOR. It is expressly understood and agreed that in
the performance of services hereunder, the Contractor shall, at all times, act
as an independent contractor with respect to the Company and not as an employee
or agent of the Company, and nothing contained in this Agreement shall be
construed to create an employer/employee, joint venture, partnership,
association or other affiliation, or like relationship, between the parties, it
being specifically agreed that the relationship is and shall remain that of
independent parties to a contractual relationship. Accordingly, the Company
shall neither have nor exercise any specific control or direction over the
particular methods by which the Contractor performs the services hereunder. In
no event shall either party be liable for the debts or obligations of the other,
except as otherwise specifically provided in this Agreement. The Company will
not withhold on the Contractor's behalf any sums for income tax, unemployment
insurance, social security or any other withholding pursuant to any law or
requirement of any government body, or make available to the Contractor any of
the benefits afforded to employees of the Company. The Contractor will indemnify
and hold harmless the Company, its shareholders, officers, directors, employees,
agents, successors and assigns, from any and all loss or liability arising from
its failure to make such payments, withholdings and benefits, if any.
7. INDEMNIFICATION. In addition to, and not in limitation of any other
indemnification provided herein, the Contractor agrees to indemnify and hold
harmless the Company, its shareholders, officers, directors, employees, agents,
successors and assigns from any and all liability, losses, claims, damages,
costs, causes of action, judgments or settlements arising therefrom, including
reasonable attorneys' fees, at all levels of trial and appeal, caused or
asserted to be caused, directly or indirectly, by or as a result of any breach
of the terms of this Agreement or any wrongful act, omission or negligence of
the Contractor in the performance of his duties hereunder.
8. RESTRICTIVE COVENANTS.
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8.1. Confidentiality. The Contractor acknowledges that as a result of the
engagement hereunder, and its previous relationship with the Company, the
Contractor has and shall be making use of and acquiring "Confidential
Information" of a special and unique nature and value to the Company. As a
material inducement for the Company to enter into this Agreement and to pay the
compensation referred to in Section 3 hereof, the Contractor covenants and
agrees that at no time during or following the term of this engagement shall the
Contractor, directly or indirectly, divulge or disclose for any purpose
whatsoever, any Confidential Information, whether or not such information is
deemed to be a trade secret. All legal remedies including, but not limited to,
an injunction or specific performance of this Section 8 shall be available to
the Company for enforcement of this provision. For purposes of this Agreement,
"Confidential Information" shall mean information relating to the Company and
its business, investments and potential business and investments, including,
without limitation, trade secrets, financial information, marketing and business
plans, investment and management strategies, methods of providing services,
practices, documentation, drawings, facilities, customers, policies, suppliers,
pricing, customer lists and leads, and other information and know-how that has
actual or potential economic value to the Company because it is not generally
known to others and is not readily ascertainable by them.
8.2. Non-Compete. The Contractor agrees that during the term of this
Agreement and for a period of one (1) year after the expiration or termination
of this Agreement, for any reason (the "Restrictive Period"), he shall not
directly or indirectly own, invest, manage, operate, join, control, be employed
by, act as agent for, or participate in the ownership, management, operation or
control of, or be connected in any manner with any person or entity whose
business is the same or similar to or competitive with that of the Company as
reasonably determined by the Company within the Territory.
8.3. Non-Solicitation.
8.3.1. No Solicitation of Employees. During the Restrictive Period, the
Contractor shall not, directly or indirectly, induce, solicit, interfere with,
employ, or endeavor to entice away from the Company any individual who is or has
been an employee or agent of the Company during the immediately preceding one
(1) year period.
8.3.2. No Solicitation of Customers. During the Restrictive Period, the
Contractor shall not solicit or transact business with (i) any existing customer
of the Company as of the date of termination of this Agreement; (ii) any former
customer of the Company who has transaction business with the Company during the
one year period prior to the date of termination of this Agreement; or (iii) any
person or entity with whom the Company or any of its employees, agents or
independent contractors (including the Contractor) has solicited or taken
preliminary steps to engage in the transaction of business, including, without
limitation, the identification of such person or entity as a prospective
customer using Company resources, during the one year period prior to the
termination of this Agreement.
8.4 Severability. The foregoing covenants set forth in this Section 8
shall be deemed severable, and the invalidity of any covenant shall not affect
the validity or
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enforceability of any other covenant or the validity of this Agreement. The
existence of any claim or cause of action by the Contractor shall not constitute
a defense to the enforcement by the Company of these covenants. The failure by
the Company to object to any conduct in violation of this Section 8 shall not be
deemed a waiver by the Company, but the Company may, if it so desires,
specifically waive any part or any of these covenants to the extent that such
waiver is set forth in writing duly authorized and approved by the Company.
8.5 Judicial Modification. In the event that any court finally holds that
the time or territory or any other provision stated in this Section 8
constitutes an unreasonable restriction, then the parties hereto hereby
expressly agree that the provisions of this Agreement shall not be rendered
void, but shall apply as to time and territory or to such other extent as such
court may judicially determine or indicate constitutes a reasonable restriction
under the circumstances involved.
8.6 Specific Enforcement. The parties acknowledge that the restrictions on
their activities as contained in this Section 8 are required for the reasonable
protection of the business of the Company. Therefore, the parties hereby agree
that, in the event of a violation of any provision of this Section 8, the
Company will be entitled, if it so elects, to institute and prosecute
proceedings at law or in equity to obtain damages with respect to such violation
or to enforce specific performance of this Section 8 against the Contractor or
to enjoin the Contractor from engaging in any activity in violation hereof.
8.7 Tolling of Time Periods. In the event that the Company should bring
any legal action or other proceedings for the enforcement of this Section 8, the
time for calculating the term of the restrictions provided herein shall not
include any period of time commencing with the filing of legal action or other
proceeding to enforce the terms of this Section 8 through the date of final
judgment or final resolution, including all appeals, if any, of such legal
action or other proceeding, unless the Company fails to prevail in such action
or proceeding.
8.8 Confirmation as to Scope. The parties hereto acknowledge and confirm
that: (i) the length of the term of the restrictions and the geographical
restrictions contained in this Section 8 are fair and reasonable and are not the
result of overreaching, duress or coercion of any kind; (ii) the full,
uninhibited and faithful observance of each of the covenants contained in this
Section 8 shall not cause any undue hardship, financial or otherwise; and (iii)
the Contractor's special knowledge of the business of the Company is such as
would cause the Company serious injury and loss if the Contractor uses such
knowledge to benefit a competitor of the Company or to compete with the Company.
The parties hereto acknowledge and agree that the provisions of this Section 8
are essential to protect the Company's legitimate business interest as
contemplated under Florida law and are in addition to any rights the Company may
have to enforce its rights with respect to the trade secrets of the Company
pursuant to Florida law.
9. ABSENCE OF CERTAIN BUSINESS PRACTICES. Neither the Contractor nor, to the
knowledge of the Contractor, any of his representatives have (i) engaged in any
activities in violation of the Foreign Corrupt Practices Act or any law of the
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jurisdiction in which they conduct business or (ii) directly or indirectly given
or agreed to give any illegal gift, contribution, payment or similar benefit to
any supplier, customer, governmental official or other person who was or is in a
position to help or hinder the Company's business (or assist in connection with
any actual transaction) or made or agreed to make any illegal contribution, or
reimbursed any illegal political gift or contribution made by any other person,
to any candidate for federal, state, local or foreign public office which (a)
may subject the Company to any damage or penalty in any civil, criminal or
governmental litigation or proceeding, (b) if not given in the past, could
reasonably be expected to have had a material adverse effect on the assets,
business or operations of the Company or (c) if not continued in the future,
could reasonably be expected to have a material adverse affect the assets,
business, operations or prospects of the Company.
10. MISCELLANEOUS.
10.1. Entire Agreement and Amendments. This Agreement constitutes the
entire agreement of the parties with respect to the subject matter hereof and
supersedes any prior agreement or understanding between the parties hereto, and
neither this Agreement nor any provision hereof may be waived, modified, amended
or, except to the extent, if any, otherwise provided in this Agreement,
terminated, except by a written agreement signed by the parties hereto.
10.2. Waivers. No waiver of any breach, default or provision hereunder
shall be considered valid unless in a writing signed by the party to be charged
therewith, and no such waiver shall be deemed a waiver of any subsequent breach
or default hereunder.
10.3. Successors and Assigns. This Agreement shall be binding upon and
against the parties hereto and their heirs, personal or other legal
representatives, administrators, successors and permitted assigns.
10.4. Negotiated Agreement. The parties to this Agreement have fully
participated in its negotiation and preparation. Accordingly, this Agreement
shall not be more strictly construed against any of the parties.
10.5. Severability. If any provision of this Agreement shall be held to be
illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in any manner
affect or render illegal, invalid or unenforceable any other provision of this
Agreement, and this Agreement shall be carried out as if any such illegal,
invalid or unenforceable provision were not contained herein.
10.6. Notices. All notices, requests, demands, instructions, consents or
other communications required or permitted to be given under this Agreement
shall be in writing and shall be deemed to have been duly given if and (a) when
delivered personally, (b) five days after they are mailed by first class
certified mail, return receipt requested, postage prepaid, or (c) two days after
they are sent by a nationally recognized express courier service, postage or
delivery charges prepaid, to the parties at the
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following addresses or to such other addresses as the parties may give notice in
accordance herewith:
If to the Company: Brightstar Corp.
0000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attn: R. Xxxxxxx Xxxxxx
If to Contractor: _________________________
_________________________
_________________________
10.7. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Florida, determined without
regard to provisions of conflicts of laws. Each of the parties hereto
irrevocably consents to the exclusive jurisdiction of the state and federal
courts located in Miami-Dade County, Florida, in any and all actions between or
among any of the parties hereto, whether arising hereunder or otherwise. Venue
for any action arising hereunder shall lie exclusively in Miami-Dade County,
Florida.
10.8. Enforcement Costs. If any legal action or other proceedings is
brought for the enforcement of this Agreement, or because of an alleged dispute,
breach, default or misrepresentation in connection with any provision of this
Agreement, the prevailing party shall be entitled to recover reasonable
attorneys' fees, court costs and all expenses (including, without limitation,
all such fees, costs and expenses incident to appellate, bankruptcy,
post-judgment and alternative dispute resolution proceedings), incurred in that
action or proceeding, in addition to any other relief to which such party or
parties may be entitled.
10.9. Counterparts. This Agreement may be executed 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. Confirmation of execution
by telex or telecopy or telefax of a facsimile signature page shall be binding
upon that party so confirming. IN WITNESS WHEREOF, the parties hereto have
executed this Agreement as of the date written above.
XXXXXX XXXX XXXXXX BRIGHTSTAR CORP.
By: ________________________________ By: _______________________________
Name: ______________________________ Name: _____________________________
Its: _______________________________ Its: ______________________________
/s/ Xxxxxx Xxxx Xxxxxx /s/ Xxxx X. Xxxxxx
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Print Name: Xxxxxx Xxxx Xxxxxx Print Name: Xxxx X. Xxxxxx
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EXHIBIT A
TERRITORY
MEXICO, RADIO MOVIL DIPSA S.A. DE CV
BRAZIL, CLARO
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EXHIBIT B
PRODUCTS
ALL COMPANY'S PRODUCTS.
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