CONSULTING AGREEMENT
EXHIBIT
10.2
This
Consulting Agreement (this “Agreement”) is made as of
January 13, 2010, by and between Mikojo Inc. (the “Company”) and Accelerated
Venture Partners LLC. (the “Consultant”) (each a “Party” and collectively
referred to hereafter as the “Parties”).
RECITALS
WHEREAS,
the Consultant has significant expertise in the field of business development,
sales and marketing, mergers, acquisitions and related
transactions;
WHEREAS,
the Company is considering various strategic options with respect to the
development of advertising placements for paying sponsors on the Internet (“Strategic
Options”).
WHEREAS,
to further facilitate pursuing the Strategic Options, Company desires
to engage
Consultant to serve as a non-exclusive strategic consultant on the terms and for
the
services specified in this Agreement;
NOW,
THEREFORE, in consideration of the premises and the mutual covenants
herein
contained and for other good and valuable consideration, the receipt and
adequacy of which
are hereby acknowledged, the Parties, intending to be legally bound, hereby
agree in
good faith as follows:
AGREEMENT
1. Definitions.
Unless otherwise defined in this Agreement, defined terms appearing in this
Agreement shall have the meaning ascribed to such terms in this Agreement.
2. Services.
The Services which Consultant shall provide under this Agreement
shall include the following:
(a)
Consultant will familiarize itself to the extent it deems appropriate
with the
business, operations, financial condition and prospects of the Company;
and
(b)
Consultant will work with the Company to facilitate and support the development
of advertising placements for paying sponsors on the Internet
(c)
Consultant will introduce the Company to certain third parties who could
potentially participate with the Company in the aforementioned
activities,
(d) Consultant will assist
the Company in arranging credit enhancement and working capital financing
(“Credit Enhancement Arrangement”) to support the placement of Internet
advertising as contemplated by this Agreement.
3. Term and
Termination. The term of this engagement shall be for a period
commencing
with the date of this Agreement and terminate concurrently with the termination
of all Internet advertising revenue to which the Company is a
party. The term may only be extended upon the mutual written
agreement of the Parties.
4. Consideration.
(a) Upon commencement of the Company’s
first generation of advertising revenues following the commencement of this
Agreement, in consideration of the performance of Consultant’s obligations set
forth in this Agreement, including without limitation, Section 2, the Company
shall pay the Consultant a consulting fee of four percent (4%) of the gross
revenue generated from the Company’s advertising placements on the Internet,
regardless of the source of such revenues. Such consulting fees shall be paid to
the Consultant immediately upon receipt by the Company of any payment made to
the Company in respect of any Internet advertising placed by the
Company.
(b) In partial consideration for the
fee payable to Consultant pursuant to Section
4(a), Consultant hereby releases and forever discharges, and agrees that each of
his heirs and assigns release and forever discharge, the Company and its past,
present and future parents, divisions, subsidiaries and affiliates,
predecessors, successors and assigns, and their past, present and future
officers, directors, members, partners, attorneys, employees, independent
contractors, agents, clients and representatives (the “Released Parties”) from
any and all actions, causes of action, debts, dues, claims and demands of every
name and nature, without limitation, at law, in equity or administrative,
against the Released Parties which Consultant may have had, now has, or may
have, by reason of any matter or thing arising up to the Closing Date other than
the obligation of the Company pursuant to Section 4(a).
5. Notices.
All notices, requests, demands, claims, and other communications hereunder shall
be in writing. Any notice, request, demand, claim or other communication
hereunder shall be deemed duly delivered four business days after it is sent by
registered or certified mail, return receipt requested, postage prepaid, or one
business day after it is sent for next business day delivery via a reputable
nationwide overnight courier service, in each case to the intended recipient as
set forth below:
If to
Consultant:
Accelerated
Venture Partners LLC.
0000
Xxxxxxx Xxxxx Xxxxx 000
Xxxxxx
Xxxx, XX 00000
Attn: Xxxxxxx
Xxxxx
If to the
Company:
Mikojo,
Inc.
0000
Xxxxxxx Xx., Xxxxx 000
Xxxxxx
Xxxx, XX 00000
Attn: Xxxxx
X. Xxxxx
Any Party
may give any notice, request, demand, claim or other communication hereunder
using any other means (including personal delivery, expedited courier,
messenger
service, telecopy, telex, ordinary mail or electronic mail), but no such notice,
request,
demand, claim or other communication shall be deemed to have been duly given
unless
and until it actually is received by the party for whom it is intended. Any
party may
change the address to which notices, requests, demands, claims, and other
communications
hereunder are to be delivered by giving the other party notice in the
manner
herein set forth.
6. Miscellaneous.
(a) Entire Agreement. This
Agreement constitutes the entire agreement among the Parties and supersedes any
prior understandings, agreements or representations by or among the Parties,
written or oral, with respect to the subject matter hereof.
(b) Succession and Assignment.
This Agreement shall be binding upon and inure to the benefit of the Parties
named herein and their respective successors and permitted assigns. No Party may
assign either this Agreement or any of its rights,
interests
or obligations hereunder without the prior written approval of the other
party.
(c) Counterparts and Facsimile
Signature. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original but all of which together shall
constitute one and the same instrument. This Agreement may be executed by
facsimile signature.
(d) Headings. The section
headings contained in this Agreement are inserted for convenience only and shall
not affect in any way the meaning or interpretation of this
Agreement.
(e) Governing Law. This Agreement
shall be governed by and construed in accordance with the internal laws of the
State of California without giving effect to any choice or conflict
of law provision or rule (whether of the State of California or any
other jurisdiction) that would cause the application of laws of any
jurisdictions other than those of the State of California . The Parties hereby
consent to the exclusive jurisdiction of the courts of the State of California
for all disputes arising under this Agreement.
(f) Amendments and Waivers. The
Parties may mutually amend any provision of this Agreement at any time during
the term of this Agreement prior to the termination of this Agreement. No
amendment of any provision of this Agreement shall be valid unless the same
shall be in writing and signed by the Parties. No waiver of any right or remedy
hereunder shall be valid unless the same shall be in writing and signed by the
party giving such waiver. No waiver by any party with respect to any default,
misrepresentation or breach of warranty or covenant hereunder shall be deemed to
extend to any prior or subsequent default, misrepresentation or breach of
warranty or covenant hereunder or affect in any way any rights arising by virtue
of any prior or subsequent such occurrence.
(g) Severability. Any term or
provision of this Agreement that is invalid or unenforceable in any situation in
any jurisdiction shall not affect the validity or enforceability of the
remaining terms and provisions hereof or the validity or enforceability of the
offending term or provision in any other situation or in any other jurisdiction.
If the final judgment of a court of competent jurisdiction declares that any
term or provision hereof is invalid or unenforceable, the Parties agree that the
court making the determination of invalidity or unenforceability shall have the
power to limit the term or provision, to delete specific words or phrases, or to
replace any invalid or unenforceable term or provision with a term or provision
that is valid and enforceable and that comes closest to expressing the intention
of the invalid or unenforceable term or provision, and this Agreement shall be
enforceable as so modified.
(h) Construction. The language
used in this Agreement shall be deemed to be the language chosen by the Parties
to express their mutual intent, and no rule of strict construction shall be
applied against any party. Any reference to any federal, state, local or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated
thereunder, unless the context requires otherwise.
(i) Remedies. In the event of any
dispute under this Agreement, the prevailing party shall be entitled to recover
its costs incurred in connection with the resolution thereof, including
reasonable attorneys fees.
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as an
instrument under seal as of the date first written above.
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/s/
Xxxxxxx Xxxxx
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/s/
Xxxxx X. Xxxxx
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By:
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By:
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| Accelerated Venture Partners LLC. | ||||
| Name: Xxxxxxx Xxxxx |
Name:
Xxxxx X. Xxxxx
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| Title: Managing Partner |
Title: Chief
Executive
Officer
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