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EXHIBIT 10.6
INDEPENDENT CONTRACTOR AGREEMENT
THIS INDEPENDENT CONTRACTOR AGREEMENT, made effective as of
the 10 day of July 1997 by and between C3, INC., a North Carolina corporation
(the "Company"), and OLLIN B. SYKES (the "Contractor").
RECITALS:
A. The Company is engaged in the business of designing,
developing, manufacturing and selling moissanite gemstones (the "Business") and
desires to engage the Contractor to assist the Company in providing finance and
business development services for the Business.
B. The Contractor desires to provide such services to the Company
on the terms and for the compensation set forth herein.
NOW, THEREFORE, the parties hereto agree as follows:
1. ENGAGEMENT. The Company hereby engages the Contractor as a
nonexclusive contractor to perform the Services (as defined herein) subject to
the terms and conditions of this Agreement, and the Contractor hereby accepts
such engagement for and in consideration of the compensation hereinafter
provided and agrees to use his best efforts in performing the Services. The
Contractor shall perform his obligations hereunder in compliance with the terms
of this Agreement and any and all applicable laws and regulations. The
Contractor acknowledges that this is a nonexclusive engagement by the Company
and that the Company retains the right to appoint additional contractors as the
Company, in it sole and unrestricted judgment, may from time to time determine
to be in the best interests of the Company without liability or obligation to
the Contractor.
2. SERVICES.
a. The Contractor agrees to provide finance and business
development services for the Company and perform other duties related thereto as
the Company may determine from time to time (the "Services"). Contractor
warrants to the Company that the Services will be performed in a professional,
timely and workmanlike manner.
b. The Contractor shall execute a Confidential
Disclosure Agreement in substantially the form attached hereto as Exhibit A
concurrent with the execution of this Agreement.
3. LICENSES; TOOLS AND MATERIALS. Contractor shall be responsible
for obtaining, at Contractor's own expense, all licenses, permits and bonds as
may be required by any federal, state or local law or regulation for the
performance of Contractor's duties hereunder. The Company shall be responsible
for supplying at its cost all necessary tools and materials to be used by
Contractor.
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4. LIMITATIONS. Nothing in this Agreement shall construed to give
the Contractor authority to represent the Company before any court or
governmental or regulatory agency without the express prior written
authorization of the Company. In addition all files, books, accounts, records
and other information of any nature, however recorded or stored, and related to
the Company (the "Records") shall at all times belong to the Company and to the
extent possessed by the Contractor hereunder, such possession shall be for the
benefit of and as agent for the Company. The Contractor's possession of the
Records is at the will of the Company and is solely for the purpose of enabling
the Contractor to perform his obligations hereunder. The Records shall be
readily separable from the records of the Contractor.
5. TERM. The term of this Agreement shall commence on the date
hereof end shall continue thereafter through and including the close of business
on July 9, 2002. Notwithstanding the foregoing, the Company may terminate this
Agreement for "cause", as defined herein, by giving written notice of at least
30 days in advance of its desire to terminate this Agreement for cause. The
Company shall be deemed to have cause for terminating Contractor's engagement in
the event Contractor (i) demonstrates any dishonesty or engages in any act of
moral turpitude, (ii) improperly performs or fails to perform the Services
described herein, (iii) causes intentional damage to substantial property of the
Company, or (iv) is unable to perform the Services because of death or a
disability which renders him unable to perform the Services for 30 consecutive
calendar days.
6. FEES. As compensation for the performance of the Services, the
Company shall pay to the Contractor the amounts agreed to from time to time by
the Company and the Contractor. No amounts (including without limitation, social
security, federal and state withholding taxes) shall be withheld or otherwise
subtracted from the compensation paid to the Contractor pursuant to this Section
5 unless required by law. In addition, the Contractor shall be reimbursed for
all expenses incurred by the Contractor on behalf (and with the prior written
authorization) of the Company within 15 days from the date the Contractor
delivers an itemized report of such expenses, together with receipts or other
evidence of payment reasonably satisfactory to the Company and its accountant.
7. INDEMNIFICATION. The Contractor shall defend, release,
indemnify and hold the Company and its directors, officers, shareholders,
employees and agents and the personal representatives and assigns of each,
harmless from and against any and all claims, suits, liability, costs and
expenses, including, without limitation, attorneys' fees and expenses, in
connection with any knowing and intentional act or omission of the Contractor,
his employees and/or agents in connection with the provision of the Services.
8. INSURANCE REPRESENTATIONS; WORKPLACE SAFETY. The Contractor
agrees to maintain liability, worker's compensation, errors and omission and/or
other insurance in such amounts and with such carriers as the Company may
reasonably request, each of which policies shall, upon request of the Company,
name the Company as an additional insured. In addition, the Contractor shall be
solely responsible for workplace safety, shall maintain the workplace in
accordance with industry standards and shall comply with all governmental
(including federal, state and local) regulations.
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9. NOTICES. All notices, demands, requests or other
communications which may be or are required to be given, served or sent by one
party to the other party pursuant to this Agreement shall be in writing and
shall be hand delivered or mailed by certified mail, return receipt requested,
postage prepaid, or sent by telefax, addressed as follows:
If to the Company:
P.O. Box 13533
Research Triangle Park, North Carolina 22709-3533
Attention: Jeff N. Hunter, President
Telecopy: (919) 468-0486
If to the Contractor:
Ollin B. Sykes
P.O. Box 1050
214 West Eden Street
Edenton, North Carolina 27932
Telecopy: (919) 482-2556
Each party may designate by notice in writing a new address to
which any notice, demand, request or communication may thereafter be delivered,
given or sent. Documents delivered by hand shall be deemed to have been received
upon delivery, documents sent by telefax shall be deemed to have been received
when the answer back is received; and documents sent by mail shall be deemed to
have been received upon their receipt, or at such time as delivery is refused by
the addressee upon presentation.
10. SECURITY. The Contractor agrees that he will at all times
comply with all security regulations in effect from time to time at the
Company's premises or applicable outside such premises' to materials belonging
to the Company. The Contractor agrees not to use or disclose to any party any
information, systems, equipment, ideas, processes or methods of operation
observed in connection with the performance of his obligations hereunder.
11. INDEPENDENT CONTRACTOR.
a. Acknowledgment by Contractor. Contractor acknowledges
and agrees that Contractor will be treated, vis-a-vis the
Company as an independent contractor and not as an employee,
agent or authorized representative of the Company. Contractor
shall have no authority to bind the Company to any contract,
agreement or obligation whatsoever. The acts of Contractor
shall in no way constitute the acts of the Company and
Contractor shall not represent to any third party that
Contractor has any express or implied authority to bind the
Company to any such contract, agreement or obligation.
b. Tax Matters. Because Contractor is an independent
contractor, the Company will not withhold from any
compensation paid to Contractor any amounts for federal
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or state income taxes, or social security (FICA) for
Contractor, nor will the Company pay any social security or
unemployment tax with respect to Contractor. Such taxes are
the responsibility of Contractor. Contractor agrees to
indemnify and hold the Company (including its employees,
officers, directors, agents, subsidiaries or affiliates)
harmless, and hereby indemnifies and hold the Company
harmless, from and against any damage, claim, assessment,
interest charge or penalty incurred by or charged to the
Company as a result of any claim, cause of action or
assessment by any federal or state government or agency for
any nonpayment or late payment by Contractor of any tax or
contribution based upon compensation paid hereunder or because
the Company did not withhold any taxes from compensation paid
hereunder.
c. No Insurance. Consistent with Contractor's status as
an independent contractor, the Company will not provide
Contractor with any company, individual or group insurance
policy or any other kind of insurance coverage whatsoever.
12. ASSIGNMENT. Neither this Agreement or any interest herein or
any rights hereunder shall be sold or assigned by the Contractor, nor shall any
of the duties of the Contractor hereunder be delegated to any person, firm or
corporation, without prior notice to and consent of the Company.
13. INTELLECTUAL PROPERTY. Any inventions, copyrights, or other
intellectual property created or developed by Contractor or Contractor's
employees, or associates or sub-contractors during the term of this Agreement
related to the work performed under the Agreement shall be assigned to the
Company.
14. STANDARD OF CARE. The Contractor warrants that he will
exercise due diligence to perform the Services in a professional manner in
compliance with all applicable laws and regulations and the highest ethical
standards. In addition the Contractor represents and warrants that any
information which he may supply the Company during the term of this Agreement
(i) will have been obtained by the Contractor lawfully and from publicly
available sources' and (ii) will not be confidential or proprietary to any third
person. Nothing in this Agreement shall be construed as authorizing or
encouraging the Contractor to obtain information for the Company in violation of
any third party's rights to copyright or trade secret protection,
15. MISCELLANEOUS.
a. The provisions of this Agreement may be waived,
altered, amended or repealed, in whole or in part, only on the written consent
of the Company and the Contractor.
b. Section headings and numbers used in this Agreement
are included for convenience of reference only, and, if there is any conflict
between any such numbers and headings, and the text of this Agreement, the text
shall control. Each of the statements set forth in the premises of this
Agreement is incorporated into the Agreement as a valid and binding
representation of the party or parties to whom it relates.
c. This Agreement shall be governed by and construed in
accordance with the laws of the State of North Carolina without reference to the
choice of law principles thereof. If any
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dispute arises hereunder, the parties hereto agree that any suit brought by
either party shall be heard in the courts of North Carolina or any federal court
sitting in North Carolina, and the parties hereto consent to the jurisdiction of
such courts.
d. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
e. This Agreement, together with the Nondisclosure and
Noncompetition Agreement herein referenced represent the entire agreement of the
parties with respect to the subject matter hereof and supersede in their
entirety any and all prior written or oral agreements with respect thereto.
f. Neither party shall have the right under this
Agreement to use the name, trademark or trade names of the other, unless prior
written approval has been obtained. Any such approval or authorization shall
cease upon termination of this Agreement.
IN WITNESS WHEREOF, the duly authorized representatives of the
parties have executed this Independent Contractor Agreement as of the date and
year first above written.
COMPANY
C3, INC.
By: /s/Jeff N. Hunter
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Jeff N. Hunter
CONTRACTOR
By: /s/Ollin Sykes (SEAL)
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Ollin Sykes