EXHIBIT 99.1
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INDEPENDENT CONTRACTOR AGREEMENT
This Agreement is made and entered into as of July 15, 2005 (the "Effective
Date"), by and between SEMOTUS SOLUTIONS, INC. (the "Company"), a Nevada
corporation, located at 00000 Xxxx Xxx., Xxxxx 000, Xxx Xxxxx, XX 00000 and
MULTI MEDIA GROUP INC. ("Independent Contractor"), with primary address at 000
Xxxx Xxxxxxx Xx., Xxxxx 00 Xxxxxxxxxx Xxxxxxx, XX 00000. The Company and
Independent Contractor may be referred to herein as "Party" or collectively as
"the Parties."
RECITALS:
A. Whereas, Independent Contractor is an independent contractor
capable of providing certain services related to marketing the Company's various
products and services as hereafter provided; and
B. Whereas, Company is in need of certain product marketing
services, and desires to hire Independent Contractor to perform such services
upon the terms and conditions as are hereinafter provided.
NOW THEREFORE, in consideration of the mutual covenants and conditions set forth
in this Agreement and other good and valuable consideration, and with the intent
to be legally bound hereby, the Company and Independent Contractor agree as
follows:
1. SERVICES: The Company hereby appoints the Independent Contractor on a
non-exclusive basis to perform certain functions and services, related to
marketing the Company's software products and services. The specific marketing
plan details for these marketing services is attached hereto as Exhibit A and
incorporated herein. It is the express intention of the Parties that Independent
Contractor is an independent contractor and not an employee, agent, joint
venture or partner of the Company.
2. COMPENSATION. Independent Contractor shall be compensated as follows:
The Company shall pay to Independent Contractor a sum of twenty thousand dollars
($20,000), and, subject to applicable securities laws, the Company hereby agrees
to issue to the Independent Contractor up to a maximum total of one hundred
thousand (100,000) restricted common shares (the "Shares") in the capital of the
Company, as follows:
(a) fifty thousand (50,000) restricted shares will be issued as soon as
practicable following the full execution of this Agreement; and
(b) the balance of the fifty thousand (50,000) shares may be issued, at
the Company's sole discretion and upon the Company's acceptance of
certain deliverables, as represented and set forth in Exhibit A.
Independent Contractor shall not be eligible for any employment
benefits, including health insurance, paid vacation time, sick days and
personal days.
Piggyback Registration Rights. If (but without any obligation to do so) the
Company proposes to register any of the Shares on a registration statement
(other than a registration relating solely to the sale of securities to
participants in a Company stock plan, a registration relating to a corporate
reorganization or other transaction under Rule 145 of the Act, a registration on
any form that does not include substantially the same information as would be
required to be included in a registration statement covering the sale of the
Shares, a registration in which the only Shares being registered are Shares
issuable upon conversion of debt securities that are also being registered, or
if there is a managing underwriter of the offering of shares referred to in the
registration statement and such managing underwriter advises the Company in
writing that the Shares proposed to be included in the offering will have an
adverse effect on its ability to successfully conclude the offering), Company
shall, at such time, promptly give the Holder written notice of such
registration. Upon the written request of the Holder given within ten (10) days
after mailing of such notice by Company, Company shall, subject to the final
approval of the other holder(s) of securities (including the underwriter, if
applicable) intended to be included on such registration statement, use all
reasonable efforts to cause to be registered under the Act all of the Shares
that the Holder has requested to be registered. Unless otherwise approved by
Company, the Holder shall have the right to include its Shares in no more than
one registration statement filed by Company in accordance with this Section.
Company shall have the right to terminate or withdraw any registration initiated
by it under this Section prior to the effectiveness of such registration. The
expenses of such withdrawn registration shall be
borne by Company.
3. Expenses. Independent Contractor shall be responsible for all costs and
expenses incident to the performance of the services hereunder, including but
not limited to, all costs of travel and all other costs of doing business. Any
expenses that the Company determines it will reimburse Independent Contractor
for must be pre-approved in writing by the Company, and Independent Contractor
must have all appropriate back-up documentation related to the expense.
4. Term and Termination. The term of this Agreement shall begin as of the
Effective Date and run until all the deliverables set forth on Exhibit A are
completed to the satisfaction of the Company. The Agreement shall only be
renewed upon both parties prior written consent. Upon termination of the
Agreement for whatever reason, Independent Contractor shall immediately deliver
all materials and information created by Independent Contractor during the term
of this Agreement to the Company and return any Company equipment it may have in
its possession.
5. Taxes. As Independent Contractor is not an employee of the Company,
Independent Contractor is responsible for paying all required government taxes.
In particular:
a) The Company will not withhold any monies from Independent
Contractor's payments;
b) The Company will not make unemployment insurance contributions on
Independent Contractor's behalf;
c) The Company will not make disability insurance contributions on
behalf of the Independent Contractor;
The Company will not obtain worker's compensation insurance on behalf of
Independent Contractor.
6. Authority. The Independent Contractor shall have no right or
authority, express or implied, to commit or otherwise obligate the Company in
any manner whatsoever except to the extent specifically provided herein or
specifically authorized in writing by the Company.
7. Non-Interference and No Solicitation. Independent Contractor covenants
and agrees that it will not, at any time, whether for its own account or for the
account of another person, interfere with the Company's computer(s) and/or the
Company's computer network, or, during the term of this Agreement and for a
period of one year after the termination of this Agreement, the relationship of
the Company with, or endeavor to entice away from the Company any person, who at
any time during the term of Independent Contractor's engagement with the Company
was an employee, customer, potential customer, affiliate or supplier of the
Company.
8. Protection of Confidential Information of the Company. I understand
that my work as an Independent Contractor of the Company creates a relationship
of trust and confidence between the Company and myself. During and after the
period of my engagement with the Company, I will not use or disclose or allow
anyone else to use or disclose any "Confidential Information" (as defined below)
relating to the Company, its products, services, suppliers or customers except
as may be necessary in the performance of my work for the Company or as may be
authorized in advance by appropriate officers of the Company. "Confidential
Information" shall include, but not be limited to, methodologies, processes,
tools, innovations, business strategies, financial information, forecasts,
personnel information, customer lists, trade secrets and any other non-public
technical or business information, whether in writing or given to me orally,
which I know or have reason to know the Company would like to treat as
confidential for any purpose, such as maintaining a competitive advantage or
avoiding undesirable publicity. I will keep Confidential Information secret and
will not allow any unauthorized use of the same, whether or not any document
containing it is marked as confidential. These restrictions, however, will not
apply to Confidential Information that has become known to the public generally
through no fault or breach of mine or that the Company regularly gives to third
parties without restriction on use or disclosure. Upon termination of my work
with the Company, I will promptly deliver to the Company all documents and
materials of any nature pertaining to my work with the Company and I will not
take with me any documents or materials or copies thereof containing any
Confidential Information.
9. Regulatory Compliance. The Independent Contractor agrees to comply with
all applicable securities legislation and regulatory policies in relation to
providing the Services, including but not limited to United States securities
laws (in particular, Regulation FD) and the policies of the United States
Securities and Exchange Commission.
10. Prohibition Against Xxxxxxx Xxxxxxx. The Independent Contractor hereby
acknowledges that the
Independent Contractor is aware that United States securities laws prohibit any
person who has material, non-public information about a company from purchasing
or selling securities of such a company or from communicating such information
to any other person under circumstances in which it is reasonably foreseeable
that such person is likely to purchase or sell such securities.
11. Notices. Except as expressly provided herein, all notices, requests or
other communications required hereunder shall be in writing and shall be
personally delivered via overnight courier service, or by United States mail,
certified or registered, postage prepaid, return receipt requested, addressed to
the respective Party at the applicable address set forth above, or to any Party
at such other addresses as shall be specified in writing by such Party to the
other Parties in accordance with the terms and conditions of this Section, or
via facsimile with proof of a printed confirmation of transmission, or via
e-mail if the other Party acknowledges receipt of such e-mail by a subsequent
e-mail. All notices, requests or communications shall be deemed effective upon
delivery, or five (5) days following deposit in the United States mail, or two
(2) business days following deposit with any international overnight courier
service.
12. Jurisdiction, Venue and Governing Law. This Agreement shall be governed
by and construed and enforced in accordance with the laws of California
(regardless of that jurisdiction or any other jurisdiction's choice of law
principles).
13. Arbitration. In the event a disagreement between the parties cannot be
resolved, the parties mutually agree to resolve any conflicts through
arbitration proceedings. Such arbitration shall be conducted before a single
arbitrator and, except as otherwise set forth herein, shall be conducted in
accordance with the then-existing rules of the Arbitration Association and
judgment upon the award rendered by the arbitrator may be entered in any court
having jurisdiction thereof. Arbitration shall take place at Santa Xxxxx County,
California or any other location mutually agreeable to the parties. The
arbitration award shall be specifically enforceable; judgment upon any
arbitration award may be entered in any court with personal jurisdiction over
the parties and subject matter of the disputes.
14. No Assignment. Independent Contractor may not assign any rights or
delegate any responsibilities hereunder without prior written approval of the
Company.
15. Entire Agreement. This agreement, including the exhibits and schedules
which are referenced herein and incorporated by this reference, is the entire
agreement between the Company and Independent Contractor with respect to the
subject matter thereof and cancels and supercedes any and all prior agreements
regarding the subject matter thereof and cancels and supercedes any and all
prior agreements regarding the subject matter hereof between the Parties. This
agreement shall be binding upon the Parties and their respective successors,
heirs and permitted assigns. This Agreement may not be altered, modified,
changed or discharged except in writing signed by both the Parties.
16. Survival. Sections 5 through 18, each inclusive, shall survive
termination or expiration of this Agreement.
17. Validity. If any one or more of the provisions (or any part thereof) of
this Agreement shall be held to be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
(or any part thereof) shall not in any way be affected or impaired thereby.
18. No Waiver of Rights. The delay or failure of either Party to enforce at
any time any provision of this Agreement shall in no way be considered a waiver
of any such provision, or any other provision, of this Agreement. No waiver of,
or delay or failure to enforce any provision of this Agreement shall in any way
be considered a continuing waiver or be construed as a subsequent waiver of any
such provision, or any other provision of this agreement.
INDEPENDENT CONTRACTOR ACKNOWLEDGES THAT IT HAS HAD THE OPPORTUNITY TO CONSULT
WITH THE LEGAL COUNSEL OF ITS CHOICE AND THAT IT HAS FREELY AND VOLUNTARILY
ENTERED INTO THIS AGREEMENT.
IN WITNESS WHEREOF, THE PARTIES HERETO HEREBY EXECUTE THIS AGREEMENT.
COMPANY: SEMOTUS SOLUTIONS, INC. INDEPENDENT CONTRACTOR: MULTI-MEDIA
GROUP, INC.
BY: /S/ XXXXXXX XXXXXX BY: /S/ XXX XXXXXXX
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NAME: XXXXXXX XXXXXX NAME: XXX XXXXXXX
TITLE: PRESIDENT AND CEO TITLE: PRESIDENT
