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INDEPENDENT
CONTRACTOR AGREEMENT
This
Agreement is entered into on June 4, 2008 (the “Effective Date”) by and between
Michael Downing (“Contractor”) and GoFish Corporation, a Nevada corporation
(“Company”) (collectively, the “Parties”).
1. CONTRACTOR’S
SERVICES
(a) Contractor
agrees to perform such services (“Services”) as may reasonably be requested in
writing by the Company, not to exceed twenty hours per month.
(b) Contractor
may, at Contractor’s own expense, use employees or other subcontractors to
perform the Services under this Agreement.
2. COMPENSATION
Company
agrees to pay Contractor one hundred twenty thousand dollars ($120,000) (the
“Fee”) for the Services, payable in monthly installments of ten thousand dollars
($10,000),
via
wire transfer on the dates set forth in Schedule A.
In
addition, the Company will grant Contractor an option (the “Option”) to purchase
three hundred thousand shares of the Company’s common stock, par value $0.001,
(the “Common Stock”) with an exercise price equal to the closing price of the
Common Stock on the date the Company’s board of directors approves the
Option.
3. EXPENSES
Company
agrees to reimburse Contractor for all itemized expenses
reasonably incurred and previously approved in the performance of the Services
upon production of supporting receipts and documentation.
4. TERM
OF AGREEMENT
(a) The
term
of this Agreement will begin on the Effective Date and end after one
year.
(b) If
this
Agreement is terminated prior to the end of the term of this Agreement by
the
Company for any reason, Contractor shall be entitled to immediate payment
of the
entire unpaid portion of the Fee. Thereafter, Company shall owe Contractor
no
further amounts or obligations.
5. DEFAULT
(a) If
either
party defaults in the performance of this Agreement or materially breaches
any
of its provisions, the nonbreaching party may terminate this Agreement by
giving
written notification to the breaching party. Termination shall be effective
immediately on receipt of the written notification by the breaching party,
or
five days after mailing of the notice to the address set forth in the notice
provisions below, whichever occurs first.
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(b) This
Agreement terminates automatically on the occurrence of any of the following
events: (i) Appointment of a receiver, liquidator, or trustee for either
Party
by decree of competent authority in connection with any adjudication or
determination by such authority that either Party is bankrupt or insolvent;
(ii) the filing by either Party of a petition in voluntary bankruptcy, the
making of an assignment for the benefit of its creditors, or the entering
into
of a composition with its creditors.
6. NOTICES
(a) Any
notice under this Agreement must be in writing and shall be effective upon
delivery by hand, by facsimile or one business day after delivery through
a
nationally recognized courier service addressed to Company or to Contractor
at
the corresponding address below. Contractor shall be obligated to notify
Company
in writing of any change in Contractor’s address. Notice of change of address
shall be effective only when done in accordance with this
Paragraph.
Company’s
Notice Address:
706
Mission St., 10th
Floor
San
Francisco, CA 94103
415-978-3020
Contractor’s
Notice Address:
Michael
Downing
[ADDRESS
OMITTED]
7. RELATIONSHIP
OF THE PARTIES
(a) Contractor
enters into this agreement as, and shall continue to be, an independent
contractor. In no circumstance shall Contractor look to Company as Contractor’s
employer, partner, agent, or principal. Neither Contractor nor any employee
of
Contractor (which for purposes of this Paragraph shall be included in the
term
“Contractor”) shall be entitled to any benefits accorded to Company’s employees,
including workers’ compensation, disability insurance, retirement plans, or
vacation or sick pay. Contractor’s exclusion from benefit programs maintained by
Company is a material component of the terms of compensation negotiated by
the
Parties, and is not premised on Contractor’s status as a non-employee with
respect to Company. To the extent that Contractor may become eligible for
any
benefit programs maintained by Company (regardless of the timing of or reason
for eligibility), Contractor hereby waives Contractor’s right to participate in
the programs. Contractor’s waiver is not conditioned on any representation or
assumption concerning Contractor’s status under the common law test. Contractor
also agrees that, consistent with Contractor’s independent contractor status,
Contractor will not apply for any government-sponsored benefits that are
intended to apply to employees, including, but not limited to, unemployment
benefits.
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(b) Contractor
shall be responsible for providing, at Contractor’s expense and in Contractor’s
name, disability, workers’ compensation, or other insurance as well as licenses
and permits usual or necessary for performing the Services. Contractor shall
pay, when and as due, any and all taxes incurred as a result of Contractor’s
compensation, including estimated taxes and payroll taxes, and shall provide
Company with proof of payment on demand. Contractor indemnifies Company for
any
claims, losses, costs, fees, liabilities, damages, or injuries suffered by
Company arising from Contractor’s breach of the provisions of this Paragraph 7.
(c) Contractor
and Company shall provide to each other upon request any information reasonably
necessary to determine their obligations under this Agreement, to fulfill
the
purposes of the Services, or to maintain accurate records.
8. PLACE
OF WORK
Contractor
is generally free to perform Contractor’s Services at a location of Contractor’s
choosing. Contractor understands that the Services must coordinate with
Company’s established protocols and security requirements.
9. CONTRACTOR’S
REPRESENTATIONS AND INDEMNITIES
(a) Contractor
represents that Contractor has the qualifications and ability to perform
the
Services in a professional manner, without the advice, control, or supervision
of Company. Contractor shall be solely responsible for the professional
performance of the Services and shall require no assistance, direction, or
control from Company. Contractor shall have sole discretion and control of
Contractor’s services and the manner in which they are to be performed.
(b)
