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INDEPENDENT CONTRACTOR AGREEMENT
THIS INDEPENDENT CONTRACTOR AGREEMENT ("Agreement") is made and entered
into as of May 1, 2007 between Xxxxxx X. Xxxxxx (hereinafter referred to as
"Contractor") whose address is 000 Xxxx 000 Xxxxx, Xxxxxx, Xxxx 00000, and BSD
Medical Corporation, a Delaware corporation, (hereinafter referred to as the
"Company").
WITNESSETH:
WHEREAS, the Company 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 the Company; and
WHEREAS, the Company 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 listed in Exhibit "A" hereto.
2.2 While the Contractor 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 the Company or otherwise creates a conflict of
interest.
2.3 The Contractor shall conduct all of his business in his own name
and in such manner as consistently exhibits high standards and integrity.
2.4 The Contractor shall abide by the policies from time to time
established by the Company.
3. OBLIGATIONS OF THE COMPANY
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3.1 The Company agrees to pay Contractor in accordance with the
schedule listed in Exhibit "B" attached hereto.
3.2 The Company shall exercise no control over the conduct of the
Contractor's business and the Company 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 services identified in Exhibit "A" and
that the Contractor is not authorized to make any representation, agreement or
contract, or incur any obligation or indebtedness on behalf of the Company of
any kind, regardless of the nature thereof, except as authorized by the Board of
Directors of the Company.
5. EXPENSES
The Company shall reimburse the Contractor for all reasonable expenses
incurred by the Contractor directly related to the performance of his duties
hereunder, including, without limitation, travel, lodging, meals, long distance
telephone, SEC and Xxxxxxxx-Xxxxx compliance reference services, and office
supplies. The Contractor shall be responsible for all other expenses related to
the operation of his local office, including, without limitation, insurance,
telephone, office supplies, professional licenses and dues, FICA, state and
federal taxes, unemployment tax and disability insurance.
6. RELATIONSHIP
The relationship of the Contractor to the Company 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 the Company and any of the contractors, agents and employees of the
Contractor. The Company 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
or 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 the Company with
a certificate showing coverage within 30 days of the date first written above.
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.
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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 the Company
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, 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) the Company 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.
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.
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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/ Xxxxx X. Xxxx /s/ Xxxxxx X. Xxxxxx
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Representing BSD Medical Corporation Contractor
Date: May 1, 2007 Date: May 1, 2007
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EXHIBIT A
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DUTIES
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Supervision of Accounting Staff
o Directly supervise and train, as required, the accounting staff of the
Company, currently comprised of one full time controller and clerical
assistant(s).
o Perform monthly reviews of the financial statements and critical
reconciliations or account analyses of the Company and its joint ventures
or affiliated entities over with the Company maintains administrative or
management responsibility.
o Be readily available to answer questions and provide day-to-day guidance
to the accounting staff of the Company.
Assume the Role of Principal Accounting Officer
o Serve as the "Principal Accounting Officer" of the Company, as that term
is defined by the rules and regulations of the Securities and Exchange
Commission ("SEC").
o Report directly to the President and Chief Executive Officer of the
Company and be readily available to consult with and assist the Chief
Executive Officer and other management of the Company in the performance
of their duties.
o Sign the officer certifications required of the Principal Accounting
Officer in the Company's quarterly and annual periodic filings with the
SEC.
o Attend meetings of the Audit Committee and Board of Directors as
requested, and serve as a resource to the members of the Board of
Directors and its committees as needed.
Under the Direction of the Audit Committee, Coordinate Relationships with the
Company's Outside Accounting and Tax Advisors
o Under the direction of the Audit Committee, coordinate the services
provided by the external auditors in the quarterly reviews and the annual
audit of the Company's financial statements, including the financial
statements of joint ventures or other entities material to the financial
statements of the Company for which the Company retains administrative or
management responsibility.
o Under the direction of the Audit Committee, coordinate all other services
provided by the external auditors, including consultation on accounting
and reporting matters, income tax matters, and other required services.
o Assume responsibility for the preparation of federal and state corporate
income tax returns and related consultation, and recommend to the Audit
Committee for approval the engagement all outside tax professionals.
Under the Direction of the Audit Committee, Assume the Responsibility to Lead
the Company's Xxxxxxxx - Xxxxx Section 404 Internal Control Compliance Program
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o Under the direction of the Audit Committee, develop the plan for the
Company's compliance with Xxxxxxxx - Xxxxx Section 404 Internal Control
Compliance.
o Identify the need for, select and recommend for approval to the Audit
Committee the use of any outside consultants required to develop and
complete the Company's 404 Internal Control Compliance Plan.
o Provide ongoing reports to the Chief Executive Officer and the Audit
Committee of the Company's progress in completing and implementing its 404
Internal Control Compliance Plan.
o Recommend to the Chief Executive Officer and the Audit Committee changes
in operating and accounting procedures necessary to strengthen internal
accounting controls.
Take the Lead in SEC Compliance for the Company's Financial Statements and SEC
Reports
o With assistance from the Company's accounting staff, timely complete the
financial statements, footnotes, and all financial related sections of the
Company's quarterly and annual reports filed with the SEC.
o Coordinate with the Chief Executive Officer, the Audit Committee, outside
legal counsel, and independent auditors the timely completion of all other
sections of the Company's quarterly and annual reports filed with the SEC.
o Using compliance checklist tools, perform a compliance review of each
report prior to its filing with the SEC.
o In coordination with outside legal counsel, see that the Company is in
compliance with and files all other necessary forms and reports with the
SEC (Form 8-K, Forms 3, 4 and 5 and other miscellaneous filings).
o Determine the correct accounting policies and procedures and reporting
practices of the Company, coordinating any required outside consultation
as approved by the Audit Committee.
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EXHIBIT B
COMPENSATION SCHEDULE
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$6,000 per month due as follows:
-$3,000 paid by the 1st of each month
-$3,000 paid by the 15th of each month
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