INDEPENDENT CONTRACTOR AGREEMENT
Exhibit 10.2
This Independent Contractor Agreement (“Agreement”) is entered into by and between XXXXXXXX XXXXX CO. (“Xxxxxxxx Xxxxx”), with a principal place of business at 0000 X. Xxxxxxx
Xxxx., XXX, XX 00000, and XXXXX XXXXXX (“Contractor”), with a principal place of business at 000 X Xxxxxx, Xxxx Xxxx Xxxx, 00000. Xxxxxxxx Xxxxx hereby engages
Contractor, and Contractor agrees to be engaged as an independent contractor to perform the services described herein and on the attached Exhibit “A” (the “Services”) subject to the following terms and conditions:
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1.
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Xxxxxxxx Xxxxx shall have no responsibility for federal or state income tax withholding, FICA, worker’s compensation insurance, or any other state or federal payments for or on behalf of
Contractor. Contractor is personally liable for all income tax, FICA and other similar obligations incurred with respect to payments made by Xxxxxxxx Xxxxx to Contractor pursuant to this Agreement and on the earnings paid to any workers
hired by Contractor, and shall indemnify, defend and hold Xxxxxxxx Xxxxx harmless from and against any such (alleged or actual) losses, damages, liabilities, claims or obligations.
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2.
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Unless stated in this Agreement or another written agreement between Contractor and Xxxxxxxx Xxxxx, Contractor will not be eligible to participate in any medical, health, life,
disability, or other insurance programs or other benefits provided by Xxxxxxxx Xxxxx to its regular employees.
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3.
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Unless stated in another written agreement between Contractor and Xxxxxxxx Xxxxx, Contractor will be paid only for Services performed under this Agreement up to and including the last
date Contractor provides Services pursuant to this Agreement.
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4.
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Except as provided on Exhibit “A” attached hereto or as otherwise agreed by the parties in writing, Contractor shall (i) provide all equipment and materials necessary to perform the
Services, and (ii) have the right to perform the Services in the manner and using the means Contractor in his or her sole discretion deems necessary and appropriate.
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5.
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Contractor’s title shall be Senior Advisor, Thought Leadership. Although Contractor has certain management and supervisory responsibilities as set forth in Exhibit A, Contractor
acknowledges and agrees that he does not have signing authority for Xxxxxxxx Xxxxx and shall not hold himself out to third parties as having signing authority for Xxxxxxxx Xxxxx. Contractor acknowledges and agrees that he does not have the
authority/responsibility to approve Xxxxxxxx Xxxxx expenses.
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6.
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Contractor shall be paid for Services rendered pursuant to this Agreement as described herein and on the attached Exhibit “A” and at the prices described herein and on Exhibit “B” and
shall not be entitled to any other compensation or benefits during the term of this Agreement or following its termination, unless stated in another written agreement. Contractor shall also agree to and sign the other forms attached hereto
as Exhibits C.
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7.
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Unless stated in another written agreement between Contractor and Xxxxxxxx Xxxxx, Contractor agrees all Services performed by Contractor are “works for hire,” and all deliverables,
whether tangible or intangible, shall be the sole and exclusive property of Xxxxxxxx Xxxxx and Consultant agrees to execute any document that asserts that right and transfer of ownership.
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8.
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In the event Contractor delivers a keynote paid for by a Xxxxxxxx Xxxxx client, Contractor shall receive the standard consultant keynote rate, determined as follows: (a) if Xxxxxxxx
Xxxxx charges the client $7,500 or more for the keynote, the standard consultant rate is twenty-seven percent (27%) of the amount charged to the client for the keynote; and (b) if Xxxxxxxx Xxxxx charges the client less than $7,500 for the
keynote, the standard consultant rate is $1,800. In the event Xxxxxxxx Xxxxx utilizes Contractor to deliver in-person field marketing events for which Xxxxxxxx Xxxxx would have otherwise paid a Xxxxxxxx Xxxxx consultant, Contractor shall
be paid the normal Xxxxxxxx Xxxxx internal consultant rate for employees of a similar level of experience and qualification In the event Contractor delivers a keynote sold by Xxxxxxxx Xxxxx and the subject of the keynote is intellectual
property owned by Contractor, Xxxxxxxx Xxxxx shall receive the revenue from the client, and Contractor shall be paid fifty percent (50%) of the revenue received from the client.
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9.
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In the event Contractor desires to engage in any business activities outside of this Agreement, during the term of this Agreement (regardless of whether those activities relate to
Xxxxxxxx Xxxxx), Contractor shall first disclose and discuss the proposed activity with Xxxxxxxx Xxxxx. Contractor may only engage in the proposed business activity with the express written consent of Xxxxxxxx Xxxxx, which consent may be
withheld in Xxxxxxxx Xxxxx’x sole discretion to protect Xxxxxxxx Xxxxx’x interests.
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10.
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Contractor shall not contract with or otherwise engage fulltime Xxxxxxxx Xxxxx employees to perform any non-Xxxxxxxx Xxxxx work, unless Contractor receives express written permission
from Xxxxxxxx Xxxxx to allow such work. In the event Contractor receives such express written permission from Xxxxxxxx Xxxxx, Contractor will reimburse Xxxxxxxx Xxxxx for the time worked by the Xxxxxxxx Xxxxx employee based on such
employee’s calculated hourly rate. Notwithstanding the foregoing, the restrictions in this paragraph do not apply to natural, normal, short conversations that take place between Contractor and Xxxxxxxx Xxxxx employees based on long term
friendships, provided that no Xxxxxxxx Xxxxx proprietary information is exchanged or discussed.
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11.
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Contractor shall be responsible for his or her own business expenses incurred in rendering the Services pursuant to this Agreement except as outlined in Exhibit B below.
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12.
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The term of this Agreement shall be effective with the date given below and continue in full force and effect for an initial term of three (3) years. Either party may terminate this
Agreement at any time by giving six (6) months written notice to the other party of the intent to terminate. Xxxxxxxx Xxxxx may terminate the Agreement immediately upon any of the following: (a) Contractor declares bankruptcy; (b)
Contractor is charged with a felony; (c) Contractor performs unauthorized actions on behalf of Xxxxxxxx Xxxxx; (d) if, after diligent inquiry and in good faith, Xxxxxxxx Xxxxx determines that Contractor is the subject of a credible
accusation of a felony or any crime involving perjury, fraud, or sexual misconduct; (e) Contractor is the subject of a credible accusation that is reasonably considered to be severely damaging to Contractor’s or Xxxxxxxx Xxxxx’x reputation;
(f) Contractor materially breaches this Agreement, including exceeding the Xxxxxxxx Xxxxx Thought Leadership budget, the Separation Agreement and General Release dated November 1, 2020, or the Intellectual Property Agreement dated November
1, 2020; or (g) Contractor engages with industries that sell goods or services with which Xxxxxxxx Xxxxx does not want to be associated (provided however, that Xxxxxxxx Xxxxx will provide Contractor with notice of any such objection and
provide Contractor a reasonable amount of time and opportunity to dissociate with said industry). Upon termination, Contractor shall return to Xxxxxxxx Xxxxx all Xxxxxxxx Xxxxx equipment and confidential information supplied by Xxxxxxxx
Xxxxx to Contractor, including but not limited to, manuals, DVDs, CD’s and all material pertaining to Xxxxxxxx Xxxxx’x training programs and remove all of the foregoing (e.g., materials, DVDs, CDs, data embedded in or found on Contractor’s
equipment, etc.). Upon termination of this Agreement for any reason, Xxxxxxxx Xxxxx shall pay Contractor for the Services rendered prior to the date of termination, and Contractor agrees that he is not entitled to any further payment,
including but not limited to a severance payment or liquidated damages payment.
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13.
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Contractor represents that he has the training, expertise, and experience necessary to perform the Services and he routinely holds himself out to the business community as a qualified
provider of services similar to the Services.
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14.
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Contractor warrants the Services shall not infringe the proprietary or intellectual property rights of others. Contractor further warrants he or she shall not use or disclose to
Xxxxxxxx Xxxxx any third party confidential information without prior written authorization.
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15.
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Contractor shall indemnify, hold harmless and defend Xxxxxxxx Xxxxx from any liability, loss, damage, claim or expense, including costs and attorneys’ fees, that result from (a) the
negligent or willful act or omission of Contractor or his agents or representatives while performing the Services or while on Xxxxxxxx Xxxxx’x premises, and (b) Contractor’s breach of any warranty hereunder.
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16.
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At all times while on Xxxxxxxx Xxxxx’x premises or a client’s premises, Contractor shall conduct himself in a business-like manner and observe all Xxxxxxxx Xxxxx policies and procedures
or those of a client.
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17.
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Contractor agrees that he shall abide by the employee handbook and guidelines found on Xxxxxxxx Xxxxx’x Enable Greatness Intranet Website.
Contractor will be provided a user ID and password to log on and have access to all Xxxxxxxx Xxxxx policies. The handbook is located under People Services/Policy Handbook.
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18.
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Contractor acknowledges that Xxxxxxxx Xxxxx owns all Xxxxxxxx Xxxxx products, programs, processes, materials, content, DVDs, CDs, and methodologies, including all copyright, patent and
trademark rights belonging thereto. Contractor agrees to maintain in confidence all company- or client-related information that Contractor may receive as a result of his relationship with Xxxxxxxx Xxxxx, including, but not limited to,
Xxxxxxxx Xxxxx strategy information, business models, or financial results. Further, Contractor agrees that he will not disclose to anyone, for any reason, or use directly or indirectly to compete with Xxxxxxxx Xxxxx, any confidential
information, including, without limitation, client information, client and prospective client lists, trade secrets, etc., that may be accessible to Contractor in connection with his working relationship with Xxxxxxxx Xxxxx.
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19.
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Contractor agrees that Contractor will not make any statements that disparage, demean or criticize Xxxxxxxx Xxxxx, its directors, officers, managers, employees, business practices,
strategies, products or services. Nothing in this provision shall prevent Contractor from making a truthful statement under oath as a witness in a proceeding by a court of competent jurisdiction or administrative agency.
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20.
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Nothing contained in this Agreement shall be deemed or construed by the parties hereto or by any third party to create the relationship of employer and employee, it being expressly
understood and agreed that neither any provision contained in this Agreement nor any act or acts of the parties hereto shall be deemed to create any relationship between Xxxxxxxx Xxxxx and Contractor other than the relationship of a
contracting party and an independent contractor.
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21.
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Contractor may not assign, delegate or subcontract any rights or obligations under this Agreement without Xxxxxxxx Xxxxx’x prior written approval.
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22.
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Except for the purchase of COBRA insurance for a limited period as set forth in the Separation Agreement and General Release between Xxxxxxxx Xxxxx and Contractor, Xxxxxxxx Xxxxx shall
not provide any insurance coverage of any kind for Consultant or Consultant's employees or contract personnel. For engagements of 90 days or longer, Consultant may choose, at his sole discretion, to maintain a General Liability insurance
policy of at least $1,000,000 to cover any negligent acts committed by Consultant or Consultant's employees or agents while performing services under this Agreement.
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23.
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Although Contractor acknowledges that he is a representative of Xxxxxxxx Xxxxx, Contractor has no right to incur obligations in the name of Xxxxxxxx Xxxxx or to represent to any third
party that he has the authority to act in the name of Xxxxxxxx Xxxxx.
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24.
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Notices required under this Agreement shall be in writing and effective upon (a) personal delivery to Contractor, (b) confirmation of fax sent to the recipient’s last known fax number,
(c) confirmation of email sent to recipient’s last known email address, or (c) three days after being deposited postage prepaid in the U.S. mail to the recipient’s last known address.
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25.
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Contractor agrees that any materials, videos, documents, content, media, footage, and/or any other information that belongs to Xxxxxxxx Xxxxx but is transferred to or used on
Contractor’s computer, laptop, digital device, video recorder, or mobile phone (and the like) will be removed by Contractor from such device upon termination of this Agreement.
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26.
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This Agreement supersedes all previous and contemporaneous agreements, oral agreements, and/or contracts between Contractor and Xxxxxxxx Xxxxx regarding the subject matter of this
Agreement. For clarity, this Agreement does not supersede the following agreements between the parties: Separation Agreement and General Release dated November 1, 2020; and Intellectual Property Agreement dated November 1, 2020.
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27.
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This Agreement shall be interpreted according to the laws of the State of Utah.
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Effective Date: November 1, 2020
Signatures
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Xxxxxxxx Xxxxx Co.
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By:
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/s/ Xxxxxx X. Xxxxxxx |
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(Signature)
Xxxxxx X. Xxxxxxx
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(Typed or Printed Name)
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Contrator:
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By:
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/s/ Xxxxx Xxxxxx |
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(Signature)
Xxxxx Xxxxxx
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(Typed or Printed Name)
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Taxper ID Number:
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If Agreement Is Faxed or Emailed:
Consultant and FranklinCovey agree this Agreement will be considered signed when the signature of a party is delivered by facsimile or email
transmission. Signatures transmitted by facsimile or email shall have the same effect as original signatures.
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EXHIBIT A
Description of Services: To assist in the performance of Services hereunder, Contractor may continue to his Xxxxxxxx Xxxxx-issued laptop. Contractor will report to Xxxx Xxxxxx.
Contractor will lead specified thought leadership functions, including performing the following services (which may be modified and/or expanded from time to time based on mutual agreement of the parties):
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1.
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Strategic Meeting and One-On-One Discussions
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a.
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Participate in quarterly strategic meeting
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b.
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Participate in one-on-one discussion with Xxxx Xxxxxx at least monthly
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2.
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Host On Leadership podcast and Maintain Associated Blog
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a.
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Find interviewees
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b.
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Conduct weekly interview/podcast
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c.
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Publish and regularly update blog
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d.
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Continue to build awareness for and improve Xxxxxxxx Xxxxx brand
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3.
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Xxxxxxxx Xxxxx Books and Book Launches
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a.
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Contractor shall continue marketing, publicizing, and launching Xxxxxxxx Xxxxx’x books in the same manner as when Contractor was an employee of Xxxxxxxx Xxxxx, including but not limited to, the following books:
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Unconscious Bias
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ii.
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The 4 Disciplines of Execution
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iii.
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Strikingly Different
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iv.
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Unlocking Potential
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v.
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The 4 Essential Roles
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vi.
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New Style of Leadership
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4.
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Articles and Interviews for Xxxxxxxx Xxxxx Consultants
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a.
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Facilitate the drafting/publication of articles by and interviews of Xxxxxxxx Xxxxx consultants
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b.
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Proofread and sign off on all articles and interviews of Xxxxxxxx Xxxxx consultants
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c.
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Assign in-bound inquiries to the appropriate Xxxxxxxx Xxxxx thought leader
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5.
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Manage DEKE and Triple7 Relationships
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a.
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Column, interview, and article placement decisions
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Xxxxxxxx Xxxxx Public Relations
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a.
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Manage, supervise, and support Xxxxxxxx Xxxxx’x public relations team
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Author Related Promotional Activities
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a.
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Develop and execute book successful book launches
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b.
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Mess to Success, EDAGM, and Multipliers
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i.
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Weekly webcasts, podcasts, articles, and business development (no charge to client) client presentations/executive overviews
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ii.
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Xxxxxxx interviews
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iii.
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EDAGM client webcasts
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iv.
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Mess to Success events monthly Xxxx M event
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v.
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Author lunch events
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8.
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Increase social media/LinkedIn presence
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a.
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Build connections and increase following for key Xxxxxxxx Xxxxx authors and thought leaders
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i.
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Manage authors’ and thought leaders’ personal channels
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9.
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Manage and Support Books and Audio Team
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a.
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Xxxxx
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x.
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Xxxx
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x.
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Xxxxxx
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x.
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Xxx
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x.
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Xxx
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x.
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Xxxx (Contractor shall ensure that Drew works 30 hours per week on Xxxxxxxx Xxxxx assignments)
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g.
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Ty (contractor) & Xxxxx Xxxxxxx (on call)
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10.
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Strategic Discussions and Key Projects
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a.
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Contractor shall be available to participate in strategic meetings and key projects, including strategy meetings, branding discussions, investor conferences, etc.
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Contractor may also be requested to provide other services for FranklinCovey as agreed upon in writing from time to time.
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Exhibit B
Payment to Contractor
In exchange for the Services to be rendered by Contractor, Xxxxxxxx Xxxxx shall pay Contractor as follows:
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a)
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Beginning on September 1, 2020 and continuing through the date on which Contractor’s employment with Xxxxxxxx Xxxxx is terminated (“Employment Termination Date”), Xxxxxxxx Xxxxx shall pay Contractor his base salary from Fiscal Year
2020. From the Employment Termination Date through the end of the fiscal year ending August 31, 2021, Xxxxxxxx Xxxxx shall pay Contractor a prorated portion of an annualized $250,000.
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b)
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For each fiscal year thereafter, and for so long as the Agreement is in effect, Xxxxxxxx Xxxxx shall pay Contractor $200,000 annually, unless otherwise agreed to in writing by the parties.
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Xxxxxxxx Xxxxx shall pay Contractor on a monthly basis.
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