EXHIBIT 1
Amended and Restated
Independent Contractor Agreement
1. Parties
This Independent Contractor Agreement (“Agreement”) is between China Tel Group, Inc. (“ChinaTel”) and Forum Group (“Independent Contractor”).
2. Term of this Agreement
The term of this Agreement shall be for three (3) years and eight (8) months, effective as of May 1, 2009 and expiring December 31, 2012.
3. Services to be Performed by Independent Contractor
Independent Contractor shall perform the following professional consulting services (“Services”) as an independent contractor to ChinaTel: (i) assisting ChinaTel’s Vice President of Mergers and Acquisitions in identifying favorable wireless telecommunication markets worldwide for expansion of ChinaTel’s business; (ii) targeting opportunities to acquire companies or their assets in key markets for ChinaTel worldwide; (iii) assisting in the technical and regulatory due diligence of proposed acquisitions of companies or their assets in key markets for ChinaTel worldwide; and (iv) working with the Vice President of Mergers and Acquisitions of ChinaTel to insure the integration of the acquired company’s operations into ChinaTel’s operations worldwide.
4. Payment
ChinaTel shall pay Independent Contractor for the Services at the rate of $7,500.00 per month (“Independent Contractor Fee”). Independent Contractor or its nominee shall also receive 2,700,000 shares of ChinaTel common stock within thirty (30) days of this Agreement being fully signed by the parties, 900,000 of which has already been received by Independent Contractor. The shares shall be deemed immediately fully paid and non-assessable. Forum shall receive the shares in its name and/or on a person and/or entity of its choice and in any case shall have the right to transfer the shares in its own discretion to any third party. Within ten (10) days after the end of each calendar month during the term of this Agreement, Independent Contractor shall submit an invoice to ChinaTel describing the Services provided and identifying the amount of compensation due Independent Contractor for the Services. ChinaTel shall pay Independent Contractor’s invoice for the Services performed within thirty (30) days of receipt thereof by ChinaTel.
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
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:
a. | 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. |
b. | 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. |
c. | 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. |
d. | Independent Contractor shall bill any client not associated with this Agreement using Independent Contractor’s own letterhead or billing form. |
e. | 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. |
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.
11. Expenses
In addition to the Independent Contractor’s Fee, Independent Contractor shall be entitled reimbursement by ChinaTel for all reasonable travel and other out-of-pocket expenses directly related to the Services Independent Contractor provides to ChinaTel; provided, however, such expenses shall be limited to $9,000.00 per month without the prior written consent by ChinaTel’s Chief Executive Officer. Within ten (10) days after the end of each calendar month during the term of this Agreement, Independent Contractor shall submit an expense reimbursement form to ChinaTel describing the reimbursable expenses being sought by Independent Contractor and providing receipts for such expenses. ChinaTel shall provide to Independent Contractor the expense reimbursement form to utilize in obtaining reimbursement for its reimbursable expenses. ChinaTel shall pay Independent Contractor’s approved reimbursable expenses within thirty (30) days of receipt thereof by ChinaTel of the expense reimbursement form.
11. 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. Not withstanding 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.
12. 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.
13. 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.
14. 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:
China Tel Group, Inc.
Irvine, California 92618
12520 High Bluff Road
Suite 145
San Diego, California 92130
Fax No. (858) 259-6613
Attention: Kenneth L. Waggoner, Esq.
Forum Group
Pardess Bar & Co. – Law Offices
12Ha’hllazon Street, Ramat Gan
P.O. Box 39449
Tel-Aviv
Israel 61393
Fax No. 972-3753-8328
Attention: Adv. Moshe Pardess
15. 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.
16. 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.
17. 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.
18. 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.
19. 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/ George Alvarez
George Alvarez
Title: Chief Executive Officer
Forum Group
By: /s/ Ami Segal
Ami Segal
Title: Chief Executive Officer