EXHIBIT 10.2
INDEPENDENT CONTRACTOR AGREEMENT
THIS INDEPENDENT CONTRACTOR AGREEMENT ("Agreement") is made and entered
into as of April 16, 2004, between Xxxxxx Xxxxxx (hereinafter referred to as
"Contractor") whose address is 000 Xxxx 000 Xxxxx, Xxxxxx, Xxxx 00000 and
Cimetrix(R) Incorporated, a Nevada corporation. (hereinafter referred to as
"Cimetrix").
WITNESSETH:
WHEREAS, Cimetrix desires to obtain the services of Contractor as a Chief
Financial Officer and in such other capacities that the Company deems
appropriate;
WHEREAS, Contractor desires to perform services for Cimetrix; and
WHEREAS, the Cimetrix and Contractor desire to set forth in the Agreement
the terms and conditions of such relationship.
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, the parties hereto do promise and agree as follows:
1. DURATION AND TERMINATION
This AGREEMENT shall become effective as of the date hereof and shall
continue thereafter for a period of one (1) year unless terminated in accordance
with the provisions hereof.
2. DUTIES OF CONTRACTOR
2.1 During the term hereof, the Contractor agrees to use his best efforts
and devote such time as may be reasonably necessary to perform the duties to be
agreed upon. Cimetrix and Contractor agree that the Contractor will provide
approximately 500 hours of service during the one year period of this Agreement,
and the consideration to be paid to Contractor pursuant to this Agreement has
been primarily based upon Contractor providing that number of hours of service.
2.2 From time to time during the term of this Agreement upon request by
Cimetrix, the Contractor shall furnish Cimetrix with such reports as Cimetrix
may request regarding the agreed upon duties.
2.3 While the Contractors has the right to enter into engagements to
perform services for other entities, the Contractor agrees that during the term
hereof he will not perform any services for any entity which directly or
indirectly competes with Cimetrix.
2.4 The Contractor acknowledges that Contractor has entered into additional
agreements with Cimetrix that are listed below:
Invention and Copyright Agreement
Confidential Disclosure Agreement
Non-competition Agreement
Indemnification Agreement
In the event of any violation of these Agreements by the Contractor, the
Contractor shall immediately forfeit the right to receive any compensation under
this Agreement.
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2.5 The Contractor shall conduct all of his business in his own name and in
such manner as consistently exhibits high standards and integrity.
2.6 The Contractor shall abide by the policies from time to time
established by Cimetrix.
3. OBLIGATIONS OF CIMETRIX
3.1 Cimetrix agrees to pay Contractor in accordance with the schedule
listed in Exhibit "A" attached hereto.
3.2 Cimetrix shall exercise no control over the conduct of the Contractor's
business and Cimetrix shall not be responsible for any act of the Contractor in
the conduct of such business.
4. AGENCY
The parties hereto agree that the scope of the Contractor's agency
hereunder is limited to performing the agreed upon services and that the
Contractor is not authorized to make any representation, agreement or contract,
or incur any obligation or indebtedness on behalf of Cimetrix of any kind,
regardless of the nature thereof, except as authorized by the Board of Directors
of Cimetrix.
5. EXPENSES
The Contractor shall be responsible for all expenses (including without
limitation, auto, travel, insurance, lodging, telephone, local office expenses,
FICA, state and federal taxes, unemployment tax and disability insurance)
incurred by the Contractor in the performance of his duties hereunder, except
for such expenses as are expressly authorized by Cimetrix in writing.
6. RELATIONSHIP
The relationship of the Contractor to Cimetrix is that of an independent
contractor, and nothing contained herein or otherwise shall be construed in such
a manner as to create the relationship of employer-employee between Cimetrix and
any of the Contractors, agents and employees of the Contractor. Cimetrix shall
not be responsible in any manner for the Contractor's Social Security
withholding, federal or state income tax withholding, or any comparable
unemployment law of any other appropriate state of jurisdiction and any other
amounts required to be withheld or paid by an employer with respect to its
employees under any applicable laws or regulations. The Contractor agrees to
either obtain and maintain workers compensation insurance through out the term
of this Agreement and to provide Cimetrix with a certificate showing coverage
within 30 days of the date first written above or in the absence of such
insurance, Contractor agrees to obtain an Employee Exclusion Certificate a copy
of which will be provided to Cimetrix within 30 days of this Agreement.
7. TERMINATION
This Agreement and all rights granted to the Contractor hereunder may, at
the option of either party, be terminated, with or without reason, ninety (90)
days after written notice is provided to the other party. Upon termination, all
obligations of the parties shall cease except the obligations identified in the
agreements listed in Paragraph 2.4.
8. ASSIGNMENT
This Agreement may not be assigned by either party without the express
prior written consent of the other; provided, however, that (i) if Cimetrix
shall merge or consolidate with or into, or transfer substantially all of its
assets, including goodwill, in a single transaction or a series of related
transactions, to an unrelated purchasers, this Agreement shall be binding upon
and inure to the benefit of the successor from such merger, consolidation or
sale, and (ii) either party may assign this Agreement to a subsidiary, parent or
affiliated entity without obtaining such consent, and (iii) Cimetrix may
withhold its consent to a proposed assignment in the event the Contractor shall
merge or consolidate with or into, or transfer substantially all of its assets,
including goodwill, in a single transaction or a series of related transactions,
to an unrelated purchaser or purchasers.
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9. NOTICE
Any notice required or permitted to be given hereunder shall be deemed to
be sufficiently given and received in all respects if personally delivered or if
deposited in the United States Mail, certified mail, postage pre-paid, return
receipt requested, addressed to the addressee at its or his last address
furnished to the sender in writing by the addressee for the purpose of receiving
notices hereunder, or, unless or until such address shall have been so
furnished, addressed to the addressee at the address indicated in the opening
paragraph of this Agreement.
10. AMENDMENT
This Agreement may not be modified, amended, terminated or discharged
except in writing and signed by the parties hereto.
11. ENFORCEMENT FEES
The parties hereto acknowledge and agree that in the event of any dispute
or proceeding initiated under this Agreement, the party prevailing in the
ultimate award shall, in addition to the other remedies and damages actually
awarded, be entitled to reimbursement of all reasonable attorneys' fees and
other out-of-pocket costs and disbursements incurred by the party in asserting
its claims hereunder.
12. ENTIRE AGREEMENT
All terms, covenants and conditions of this Agreement are contained herein
and there are no other warranties, obligations, covenants or understandings
between the parties other than those expressed herein. Any and all agreements
for solicitation of orders, as amended, modified, or supplemented, heretofore
entered into between the parties hereto, or claims or compensation arising
therefrom, are hereby canceled, terminated and released as of the effective date
of this Agreement.
13. WAIVER
The parties agree that if any provision of this Agreement shall under any
circumstance be invalid or inoperative, this Agreement shall be construed with
the invalid or inoperative provision deleted, and the rights and obligations of
the parties shall be construed and enforced accordingly.
14. GOVERNING LAW
This Agreement shall be construed and interpreted in accordance with the
internal laws of the State of Utah or any successor provision thereto.
/S/ Xxxxxx X. Xxxxxx /S/ Xxxxxx X. Xxxxxx
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Representing Cimetrix Incorporated Contractor
Date: April 16, 2004 Date: April 16, 2004
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EXHIBIT A
COMPENSATION SCHEDULE
$3,000 per month due as follows:
-$1,500 paid by the 1st of each month
-$1,500 paid by the 16th of each month
Cimetrix will grant 35,000 Warrants at a strike price of $0.35 per share that
will vest 25% every 3 months
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