Amended and Restated Independent Contractor Agreement
EXHIBIT 99.5
Amended
and Restated Independent Contractor Agreement
1. Parties
This
Amended and Restated Independent Contractor Agreement ("Agreement") is between
China Tel Group, Inc. ("ChinaTel") and Xxxxxxx Xxxxxxxxx ("Independent
Contractor").
2. Term
of this Agreement
The term
of this Agreement shall be effective as of January 1, 2009 and shall expire
November 6, 2009 ("Term").
3. Services
to be Performed by Independent Contractor
Independent
Contractor shall perform professional services (the “Services”) of the following
general description as an independent contractor to ChinaTel acting as its Chief
Administrative Officer during the entire Term of this Agreement. The
Services include, but are not limited to: (i) coordination of long-range and
annual planning in collaboration with the Chief Executive Officer and the Board
of Directors; (ii) supervising the administrative staff and directing
administrative operations; (iii) managing the operation and maintenance of the
corporate office; (iv) administering and supporting, in conjunction with the
Chief Executive Officer and the Chief Operating Officer, all aspects of the
ChinaTel’s operations; (v) acting as the representative and advocate of ChinaTel
with government agencies, insurance companies, community and local business
groups and organizations; and (iv) managing the provision of all administrative
services to ChinaTel through outside consultants.
4. Payment
ChinaTel
shall pay Independent Contractor for the Services described above for a fixed
fee of 3,000,000 shares of ChinaTel's Series A common stock issued as S-8 stock
("Independent Contractor Fee"), which amount is in addition to 772,803 shares
paid to Independent Contractor under the original independent contractor
agreement between the parties. The Independent Contractor Fee shall
be paid as soon as is practical following the expiration of the Term of this
Agreement.
5. State
and Federal Taxes
Independent
Contractor shall assume full responsibility for the payment of any taxes (or any
other obligations or payments) that may be claimed as owed by any unit of
government, as a result of remuneration paid to Independent Contractor for the
performance of the Services. This includes income, Social Security,
Medicare and self-employment taxes. Independent Contractor shall also pay all
unemployment contributions related to the performance of the
Services. Independent Contractor shall defend and indemnify ChinaTel
with regard to any such payments.
6. Fringe
Benefits
Independent
Contractor shall not be eligible to receive any employee benefits from ChinaTel,
including, but not limited to, medical,
dental, vision, long-term disability, accidental death and dismemberment,
flexible spending account, mental health services, family and medical care leave
benefits, vacation benefits and participation in any ChinaTel 401 (k)
plan.
7. Independent Contractor Status
The
parties intend Independent Contractor to act as an independent contractor in the
performance of the Services. Independent Contractor shall have the right to
control and determine the methods and means of performing the Services.
Independent Contractor shall use his own expertise and judgment in performing
the Services, recognizing that ChinaTel is relying on Independent Contractor to
consult, when appropriate, with employees of ChinaTel and its subsidiaries and
affiliated companies.
8. Other
Clients of Independent Contractor
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(a)
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ChinaTel
understands that, in addition to providing services to ChinaTel on its
matters, Independent Contractor may be retained, directly or indirectly,
by other entities or individuals to provide services separate and apart
from the Services. Independent Contractor shall be responsible for
following appropriate procedures to avoid any breach of client
confidentiality or any conflicts of interest on the part of Independent
Contractor which regard to the performance of the Services. These
procedures include, but are not limited to, the
following:
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(b)
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The
parties associated with any matter for which Independent Contractor is
retained outside of the Services must be processed in advance for
conflicts with ChinaTel and any of its subsidiaries and affiliated
companies (collectively, "ChinaTel Group"). If a conflict of interest
exists or appears to exist, Independent Contractor shall not perform any
services for such third party, unless and until the conflict is
resolved.
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(c)
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Independent
Contractor shall use Independent Contractor's own letterhead and business
cards, and not those of ChinaTel, when providing service to its clients
outside of this Agreement. Independent Contractor's shall use Independent
Contractor's own letterhead for engagement letters and all other
correspondence on matters not associated with the
Services.
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(d)
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Independent
Contractor shall not utilize any ChinaTel personnel or resources on any
matters for a client outside of this Agreement. Should Independent
Contractor desire to utilize the services of such personnel or resources
on any such matter, Independent Contractor must first obtain prior written
approval from the Chief Executive Officer of
ChinaTel.
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(e)
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Independent
Contractor shall xxxx any client not associated with this Agreement using
Independent Contractor's own letterhead or billing
form.
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(f)
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Independent
Contractor shall not discuss with his other clients the Services being
performed pursuant to this Agreement; likewise, Independent Contractor
shall not discuss with any ChinaTel personnel issues pertaining to
Independent Contractor's work for his other
clients.
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9. Assistants
Independent
Contractor, at Independent Contractor's sole expense, may employ assistants as
Independent Contractor deems appropriate to perform the Services. Independent
Contractor shall be responsible for paying these assistants and expenses
attributable to them, including income, Social Security, Medicare taxes and
unemployment contributions. Independent Contractor shall maintain Worker's
Compensation Insurance for all his employees in connection with their work on
the Services.
10. Equipment
and Supplies
Independent
Contractor, at Independent Contractor's sole expense, shall provide all
equipment, tools and supplies necessary to perform the Service.
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11. Expenses
Independent
Contractor shall be responsible for all expenses required for the performance of
the Services, which shall be included in the Independent Contractor Fee, except
such travel and other expenses as are approved in advance by
ChinaTel.
12. Confidential
Information
In order
to assist Independent Contractor in the performance of the Services, ChinaTel
may supply Independent Contractor, from time to time, with information
concerning ChinaTel and the ChinaTel Group, and their respective customers and
suppliers, hereinafter referred to as "Confidential Information." Independent
Contractor shall hold confidential and not disclose to others, either directly
or indirectly, any and all Confidential Information, propriety information,
technical data, trade secrets or know-how, including, but not limited to,
research, product plans, products, services, customers, customer lists, markets,
software, developments, inventions, processes, formulas, technology, designs,
financial data and other business information which may be learned from ChinaTel
and/or the ChinaTel Group before and during the term of this Agreement, unless
the same have been furnished directly to Independent Contractor by ChinaTel and
Independent Contractor is advised in writing by ChinaTel that such information
is not Confidential Information. Independent Contractor acknowledges that the
terms and conditions of this Agreement are deemed confidential by ChinaTel and
agrees not to disclose any information regarding it to any third party, without
ChinaTel's prior written consent. All documents containing Confidential
Information shall be returned to ChinaTel, and no copies shall be retained by
Independent Contractor on the termination or expiration of this Agreement.
Notwithstanding the foregoing, such duty of confidentiality shall not extend to
information which is or comes into the public domain, is rightfully obtained for
third parties under a duty of confidentiality, or which is independently
developed without reference to ChinaTel's Confidential Information. The duties
of confidentiality imposed by this Agreement shall survive any termination or
expiration of this Agreement for a period of three (3) years. All data and
information developed by Independent Contractor (including notes, summaries, and
reports), while performing the Services, shall be kept strictly confidential and
shall not be revealed to third parties, without ChinaTel's prior written consent
thereto. All such data and information shall be delivered to ChinaTel by
Independent Contractor at ChinaTel's request.
13. Dispute
Resolution
If a
dispute arises relating to this Agreement or the termination thereof, claims for
breach of contract or breach of the covenant of good faith and fair dealing,
claims of discrimination or any other claims under any federal, state or local
law or regulation now in existence or hereinafter enacted, and as amended from
time to time (“Dispute”), the parties shall attempt in good faith to settle the
Dispute through mediation conducted by a mediator to be mutually selected by the
parties. The parties shall share the costs of the mediator equally. Each party
shall cooperate fully and fairly with the mediator, and shall reach a mutually
satisfactory compromise of the Dispute. If the Dispute is not resolved within
thirty (30) days after it is referred to the mediator, it shall be resolved
through final and binding arbitration, as specified in this Section
13.
Binding
arbitration shall be conducted by the Judicial Arbitration and Mediation
Services, Inc. (“JAMS”), sitting in Orange County, California, for resolution by
a single arbitrator acceptable to both parties. If the parties fail to agree to
an arbitrator within ten (10) days of a written demand for arbitration being
sent by one party to the other party, then JAMS shall select the arbitrator
according to the JAMS Rules for Commercial Arbitration. The arbitration shall be
conducted pursuant to the California Code of Civil Procedure and the California
Code of Evidence. The award of such arbitrator shall be final and binding on the
parties, and may be enforced by any court of competent jurisdiction. In the
event of arbitration to resolve a Dispute, the prevailing party shall be
entitled to recover its attorney's fees and other out-of-pocket costs incurred
in connection therewith from any non-prevailing party involved
therein.
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14. Assignment of the Agreement; Delegation of Responsibilities; Successors and Assignees
Independent
Contractor shall not assign any of his rights under this Agreement or delegate
any of his responsibilities without the prior written consent of ChinaTel, which
may be exercised in its sole discretion. This Agreement binds and benefits the
heirs, successors and assignees of the parties to this Agreement, subject to the
prohibition on assignments contained in this Section 14.
15. Notices
All
notices, requests and demands to or upon a party hereto, to be effective, shall
be in writing and shall be sent: (i) certified or registered mail, return
receipt requested; (ii) by personal delivery against receipt; (iii) by overnight
courier; or (iv) by facsimile and, unless otherwise expressly provided herein,
shall be deemed to have been validly served, given, delivered and received: (a)
on the date indicated on the receipt, when delivered by personal delivery
against receipt or by certified or registered mail; (b) one business day after
deposit with an overnight courier; or (c) in the case of facsimile notice, when
sent. Notices shall be addressed as follows:
ChinaTel
Group, Inc.
0000
Xxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx,
Xxxxxxxxxx 00000
Fax No.
(000) 000-0000
Attention:
Xxxxxx Xxxxxxx
Xxxxxxx
Xxxxxxxxx
00000
Xxxxxxxxx Xxxx
Fax No.
(000) 000-0000
Attention:
Xxxxxxx Xxxxxxxxx
16. Governing
Law
This
Agreement shall be governed by and construed in accordance with the laws of the
State of California, without resort to California's conflict-of-laws
rules.
17. Counterparts
This
Agreement may be executed in one or more counterparts, each of which shall be
deemed to be an original copy of this Agreement and all of which, when taken
together, shall be deemed to be one and the same agreement.
18. Waiver
If one
party waives any term or provision of this Agreement at any time, that waiver
will be effective only for the specific instance and specific purpose for which
the waiver was given. If either party fails to exercise or delays exercising any
of his or her rights or remedies under this Agreement, the party retains the
right to enforce that term or provision at a later time.
19. Severability
If any
court determines that any provision of this Agreement is invalid or
unenforceable, any invalidity or unenforceability will affect only that
provision and will not make any other provision of this Agreement invalid or
unenforceable, and such provision shall be modified, amended or limited only to
the extent of necessary to render it valid and enforceable.
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20. ChinaTel's Responsibilities
ChinaTel
shall be responsible to keep Independent Contractor apprised of facts pertinent
to the Services and to review and comment concerning documents prepared by
Independent Contractor.
21. Entire
Agreement and Modification
This
Agreement supersedes all prior agreements between the parties with respect to
its subject matter and constitutes a complete and exclusive statement of the
terms of this Agreement with respect to its subject matter. This Agreement may
not be amended, except in writing signed by both parties.
China
Tel Group, Inc.
By /s/ Xxxxxx Xxxxxxx
Xxxxxx
Xxxxxxx
Title:
Chief Executive Officer
Xxxxxxx
Xxxxxxxxx
By /s/ Xxxxxxx Xxxxxxxxx
Xxxxxxx
Xxxxxxxxx
Title:
Chief Administrative Officer
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