Exhibit 10.5
INDEPENDENT CONTRACTOR AGREEMENT
This Independent Contractor Agreement (the "Agreement") is made and entered into
as of October 25, 2013, by and between Red Giant Entertainment, Inc., a Nevada
corporation (the "Company") and Xxxxx Xxxxxxx, an individual (the "Independent
Contractor") (individually, a "Party"; collectively, the "Parties").
RECITALS
WHEREAS, Independent Contractor has certain business management experience; and
WHEREAS, the Company wishes to engage the services of the Independent Contractor
to assist the Company with its day-to-day operations.
NOW, THEREFORE, in consideration of the mutual promises herein contained, the
Parties hereto hereby agree as follows:
1. INDEPENDENT CONTRACTOR SERVICES
Independent Contractor shall act as Chief Operating Officer of the Company.
Attached hereto as Exhibit A and incorporated herein by this reference is a
description of the services to be provided by the Independent Contractor
hereunder (the "Operational Services"). Independent Contractor hereby agrees to
utilize his best efforts in performing the Operational Services, however,
Independent Contractor makes no warranties, representations, or guarantees
regarding any corporate strategies attempted by the Company or the eventual
effectiveness of the Operational Services.
2. TERM OF AGREEMENT
This Agreement shall be in full force and effect commencing upon the date hereof
and shall continue for an initial term of one year (the "Initial Term") with
automatic one year renewals unless either party gives at least ten calendar days
notice to the other Party of his or its intention not to renew. Either Party
hereto shall have the right to terminate this Agreement without notice in the
event of the death, bankruptcy, insolvency, or assignment for the benefit of
creditors of the other Party. Either Party hereto shall have the right to
terminate this Agreement upon 30 calendar days written notice to the other
Party. The Company shall have the right to terminate this Agreement upon
delivery to the Independent Contractor of notice setting forth with specificity
facts comprising a material breach of this Agreement by Independent Contractor.
Independent Contractor shall have ten business days to remedy such breach.
3. TIME DEVOTED BY INDEPENDENT CONTRACTOR
It is anticipated that the Independent Contractor shall spend as much time as
deemed necessary by the Independent Contractor in order to perform the
obligations of Independent Contractor hereunder. The Company understands that
this amount of time may vary and that the Independent Contractor may perform
Operational Services for other companies.
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4. PLACE WHERE SERVICES WILL BE PERFORMED
The Independent Contractor will perform most services in accordance with this
Agreement at Independent Contractor's offices. In addition, the Independent
Contractor will perform services on the telephone and at such other place(s) as
necessary to perform these services in accordance with this Agreement.
5. COMPENSATION TO INDEPENDENT CONTRACTOR
The Independent Contractor's compensation for the Operational Services shall be
as set forth in Exhibit B attached hereto and incorporated herein by this
reference.
6. INDEPENDENT CONTRACTOR
Both Company and the Independent Contractor agree that the Independent
Contractor will act as an independent contractor in the performance of
Independent Contractor's duties under this Agreement. Nothing contained in this
Agreement shall be construed to imply that Independent Contractor, or any
employee, agent or other authorized representative of Independent Contractor, is
an employee of Company. Independent Contractor shall perform services under his
own discretion and control.
7. TAXES
Independent Contractor acknowledges and agrees that it shall be the obligation
of Independent Contractor to report as income all compensation received by
Independent Contractor pursuant to this Agreement, and Independent Contractor
agrees to indemnify the Company and hold it harmless to the extent of any
obligation imposed on the Company to pay any taxes or insurance, including
without limitation, withholding taxes, social security, unemployment, or
disability insurance, including interest and penalties thereon, in connection
with any payments made to Independent Contractor by the Company pursuant to this
Agreement.
8. CONFIDENTIAL INFORMATION
The Independent Contractor and the Company acknowledge that each will have
access to proprietary information regarding the business operations of the other
and agree to keep all such information secret and confidential and not to use or
disclose any such information to any individual or organization without the
non-disclosing Party's prior written consent.
9. INDEMNIFICATION
Each Party (the "Indemnifying Party") agrees to indemnify, defend, and hold
harmless the other Party (the "Indemnified Party") from and against any and all
claims, damages, and liabilities, including any and all expense and costs, legal
or otherwise, caused by the negligent act or omission of the Indemnifying Party,
its subcontractors, agents, or Independent Contractors, incurred by the
Indemnified Party in the investigation and defense of any claim, demand, or
action arising out of the work performed under this Agreement; including breach
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of the Indemnifying Party of this Agreement. The Indemnifying Party shall not be
liable for any claims, damages, or liabilities caused by the sole negligence of
the Indemnified Party, its subcontractors, agents, or employees.
The Indemnified Party shall notify promptly the Indemnifying Party of the
existence of any claim, demand, or other matter to which the Indemnifying
Party's indemnification obligations would apply, and shall give them a
reasonable opportunity to settle or defend the same at their own expense and
with counsel of their own selection, provided that the Indemnified Party shall
at all times also have the right to fully participate in the defense. If the
Indemnifying Party, within a reasonable time after this notice, fails to take
appropriate steps to settle or defend the claim, demand, or the matter, the
Indemnified Party shall, upon written notice, have the right, but not the
obligation, to undertake such settlement or defense and to compromise or settle
the claim, demand, or other matter on behalf, for the account, and at the risk,
of the Indemnifying Party.
The rights and obligations of the Parties under this Article shall be binding
upon and inure to the benefit of any successors, assigns, and heirs of the
Parties.
10. COVENANTS OF INDEPENDENT CONTRACTOR
Independent Contractor covenants and agrees with the Company that, in performing
Operational Services under this Agreement, Independent Contractor will:
A. Comply with all federal and state laws;
B. Not make any representations other than those authorized by the
Company; and
C. Not publish, circulate or otherwise use any materials or documents
other than materials provided by or otherwise approved by the Company.
11. MISCELLANEOUS
A. The Parties submit to the jurisdiction of the Courts of the County of
Orange, State of California or a Federal Court empaneled in the State
of California for the resolution of all legal disputes arising under
the terms of this Agreement. This provision shall survive the
termination of this Agreement.
B. If either Party to this Agreement brings an action on this Agreement,
the prevailing Party shall be entitled to reasonable expenses
therefore, including, but not limited to, attorneys' fees and expenses
and court costs.
C. This Agreement shall inure to the benefit of the Parties hereto, their
administrators and successors in interest. This Agreement shall not be
assignable by either Party hereto without the prior written consent of
the other.
D. This Agreement contains the entire understanding of the Parties and
supersedes all prior agreements between them.
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E. This Agreement shall be constructed and interpreted in accordance with
and the governed by the laws of the State of California.
F. No supplement, modification or amendment of this Agreement shall be
binding unless executed in writing by the Parties. No waiver of any of
the provisions of this Agreement shall be deemed, or shall constitute,
a waiver of any other provision, whether or not similar, nor shall any
waiver constitute a continuing waiver. No waiver shall be binding
unless executed in writing by the Party making the waiver.
G. If any provision hereof is held to be illegal, invalid or
unenforceable under present or future laws effective during the term
hereof, such provision shall be fully severable. This Agreement shall
be construed and enforced as if such illegal, invalid or unenforceable
provision had never comprised a part hereof, and the remaining
provisions hereof shall remain in full force and effect and shall not
be affected by the illegal, invalid or unenforceable provision or by
its severance herefrom.
IN WITNESS WHEREOF, the Parties hereto have placed their signatures hereon on
the day and year first above written.
COMPANY: INDEPENDENT CONTRACTOR:
RED GIANT ENTERTAINMENT, INC., XXXXX XXXXXXX,
a Nevada corporation an individual
/s/ Xxxxx Xxxxxx /s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxx, President Xxxxx Xxxxxxx
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EXHIBIT A
DESCRIPTION OF OPERATIONAL SERVICES
Independent Contractor shall perform the following services pursuant to the
terms of this Agreement:
a. In charge of the administration of the property of the Company under
the direction of the Board of Directors.
b. Provide timely, accurate and complete reports on the operating
condition of the Company.
c. Collaborate with the management team to develop and implement plans
for the operational infrastructure of systems, processes, and
personnel designed to accommodate the rapid growth objectives of the
Company.
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EXHIBIT B
TERMS OF COMPENSATION
The Independent Contractor's compensation hereunder is as follows:
1. ANNUAL COMPENSATION. For Operational Services performed, beginning with
the effective date of the Agreement and continuing until the Agreement is
terminated as set forth in Section 2 above, Independent Contractor shall receive
an annual fee of $18,000, payable in equal monthly installments of $1,500.
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