CONSULTING SERVICES AGREEMENT
EXHIBIT
10.2
THIS
CONSULTING SERVICES AGREEMENT (the “Agreement”)
is made and entered as of April 29, 2010 (the “Effective
Date”) by and between Accelerated Acquisitions V, Inc., a Delaware
Corporation (the “Company”)
and Accelerated Venture Partners LLC, a Delaware limited liability company (the
“Consultant”). The
Company and the Consultant may each be referred to herein as a “Party” and
together as the “Parties.”
RECITALS
A. The
Company is seeking to develop its business of demand pooling on the
Internet.
B. The
Consultant desires to assist the Company by providing advice about such
activities and to provide related services to the Company, subject to the terms
and conditions of this Agreement.
THE
PARTIES AGREE AS FOLLOWS:
Scope of Services;
Performance. The consulting
services covered by this Agreement (collectively, the “Services”) are described in
detail on Exhibit
A attached hereto. Subject to the specific limitations imposed
herein and those resulting from the nature of the Services to be performed, the
Consultant will exercise independent professional judgment in determining the
method, details, and means of performing the Services. The Company
does not propose to exercise any control over the method and manner of providing
the Services. The Consultant will endeavor to perform the Services
within a reasonable period of time, except for delays occasioned by factors
beyond the Consultant’s control, by factors not reasonably foreseeable, or by
factors initiated by the Company. No other warranty, express or
implied, is made with respect to Services performed under this
Agreement.
Access to
Company. The Company shall make available to the Consultant
such of its personnel and resources as is reasonably appropriate in order for
the Consultant to perform the Services.
Compensation;
Payment. The Company will compensate the Consultant for the
Services pursuant to the terms set forth on Exhibit
B attached hereto. In the event that Consultant and the
Company agree to amend Exhibit A so as
to cause the Consultant to provide additional Services, Exhibit B shall
be amended to provide additional compensation for such additional
Services. Except as otherwise set forth on Exhibit B, invoices
will be sent to the Company monthly or in accordance with a mutually agreed upon
schedule set forth on Exhibit B, and shall
be due within 30 days of the billing date indicated therein or on a deferred
basis as described on Exhibit
B. The Company agrees to pay interest on any outstanding
balance (not including any accrued but deferred amount) over 30 days past due at
the lesser of the rate of 1.0% per month or the highest rate permitted under
applicable state law until such balance is paid. Should the
outstanding balance (not including any accrued but deferred amount) remain over
30 days past due the Consultant may also, without liability, suspend performance
of the Services. The Consultant reserves the right to decline further
work with the Company for any reason, including without limitation, if the
Company is delinquent in payment of charges due to the Consultant hereunder (not
including any accrued but deferred amount).
Ownership;
Exclusions. Except as set forth below, any proprietary rights,
whether tangible or intangible, arising out of or relating to any portion of the
Services, including but not limited to all paper and electronic files provided
as source materials, all output files produced by the Company, and all printed
copies of output files, all work in progress, and all deliverables
(collectively, the “Work
Product”) shall be the sole property of the Company, and may be used
without restriction by the Company. However, such Work Product shall
not include the
proprietary systems, plans, concepts, programs, models, designs, tools,
equipment process automation, computer programs or code, devices, inventions and
processes of the Consultant (collectively, the “Consultant Systems”) used by
the Consultant in connection with provision of the Services, nor shall it
include any improvements upon the Consultant Systems discovered or developed by
the Consultant in the course of providing the Services to the
Company. The Consultant Systems, including improvements and any
proprietary rights therein, shall be the exclusive property of the
Consultant.
Confidentiality.
Definition. For
purposes of this Agreement, “Confidential Information”
means information of either Party (the “Disclosing Party”) or any
person or business entity directly or indirectly controlled by or controlling
the Disclosing Party, or in which any of the aforesaid have at least a 50%
interest, which information is or has been disclosed to the other Party (the
“Recipient Party”) or
is otherwise known to the Recipient Party as a consequence of or through the
performance of Services for the Company, whether or not related to the
Consultant’s duties for the Company, including, but not limited to, information
relating to original works of authorship, disclosures, processes, systems,
methods, formulas, trade secrets, procedures, concepts, algorithms, software,
compositions, techniques, drawings, specifications, models, data, source code,
object code, documentation, diagrams, flow charts, research procedures,
copyrights, copyright applications, trademarks, trademark applications, devices,
machinery, materials, cost of production, contract forms, prices, pricing
policies, volume of sales, promotional methods, identity or information about
customers or suppliers, marketing techniques or other information of a similar
nature. Information shall be considered to be Confidential
Information if not known by the trade generally, even though such information
has been disclosed to one or more third parties pursuant to distribution
agreements, joint research agreements, or other agreements entered into by the
Disclosing Party. Confidential Information shall not include
information which (a) is or becomes publicly known through no fault of the
Recipient Party; (b) is learned by the Recipient Party from a third party
entitled to disclose such information; (c) is previously known to the Recipient
Party before receipt from the Disclosing Party; (d) is developed by or for the
Recipient Party independently of the Confidential Information; or (e) is
required to be disclosed by a court or government agency of competent
jurisdiction.
Restrictions. Each
Party understands that it may receive Confidential Information of the other
Party during the course of this Agreement. Neither Party shall,
either during or subsequent to the term of this Agreement, directly or
indirectly, disclose or use any Confidential Information of the other Party to
any person or entity, except as is necessary to perform the obligations
hereunder.
Injunctive
Relief. The Parties acknowledge and agree that damages will
not be an adequate remedy in the event of a breach of either Party’s obligations
under this Section 5. Each Party therefore agrees that the other
Party shall be entitled (without limitation of any other rights or remedies
otherwise available to such other Party and without the necessity of posting a
bond) to obtain an injunction from any court of competent jurisdiction
prohibiting the continuance or recurrence of any breach of this Section
5.
Financing
Transactions. It is understood that as relates to any public
or private offering of convertible debt, common or preferred stock or any other
security or investment instrument of the Company (“Financing”), the Consultant
is acting as an advisor only, is not a licensed securities or real estate broker
or dealer, and shall have no authority to enter into any commitments on the
Company’s behalf, or to negotiate the terms of any Financing, or to hold any
funds or securities in connection with any Financing or to perform any act which
would require the Consultant to become licensed as a securities or real estate
broker or dealer under applicable state or federal law. In
consideration of the Company entering into this Agreement and as an inducement
to the Company agreeing to pay the compensation described on Exhibit
B hereto, the Company and the Consultant confirm and acknowledge
that pursuant to the Consultant’s provision of Services hereunder:
The
Consultant has not engaged, and shall not engage, in any actions requiring
registration as a securities broker or dealer under any applicable federal,
state or foreign laws;
The
Consultant shall only introduce to the Company prospective investors that the
Consultant reasonably believes are “accredited investors” as defined in Rule
501(a) promulgated under the Securities Act of 1933, as amended, and will assist
the Company in performing whatever reasonable due diligence investigation may be
necessary in order to confirm such “accredited investor” status;
and
The
Consultant has not engaged, and shall not engage, in any general solicitation or
advertisement to seek investors or potential investors in the
Company.
Indemnification and Company
Representation.
Indemnification of
Consultant. In addition to the specific indemnification
contemplated under Section 7.3 below, the Company agrees to indemnify and hold
harmless the Consultant from and against any and all losses, claims, damages,
liabilities, judgments, charges and expenses (including all legal or other
expenses reasonably incurred by the Consultant) in connection with investigating
or defending against or providing evidence in any litigation, whether commenced
or threatened, in connection with any claim, action or proceeding to which the
Consultant becomes subject, whether or not resulting in any liability, caused
by, or arising out of any Services by the Consultant under this Agreement;
provided, however, that the Company shall not be liable in any such case to the
extent that any such loss, claim, damage or liability is found to have resulted
from the Consultant’s negligence, bad faith,
fraud or misconduct..
Counsel. The
Consultant shall be entitled to employ counsel separate from the Company and
from any other party in such action. In such event, the reasonable
fees and disbursements of such separate counsel, as incurred, shall be paid by
the Consultant.
Company Representation and
Warranty. The Company hereby represents and warrants that all
information provided to Consultant pertaining to the Company and relating to the
Services shall be true and correct in all material respects, and that the
Company shall hold Consultant harmless from any and all liability, expenses or
claims arising from the disclosure or use of such information.
Indemnification of
Company. If the Company or its officers, directors,
shareholders or affiliates suffer or incur any loss, claim, damage, liability or
expense by reason of the Consultant’s negligence, bad
faith, fraud or misconduct in the provision of Services, the Company
and any such persons have the same rights of indemnification from the Consultant
as are given by the Company to the Consultant hereunder.
Term and
Termination. This Agreement shall be effective from and after
the date hereof until one year after the Effective Date, unless earlier
terminated by either Party in writing on 10 days notice; provided, however, that
the Company may not terminate this Agreement other than for “Cause” (as defined
below) or in connection with a “Buyout” as described in Exhibit
B. For purposes of this Agreement, termination for “Cause” means either (a)
termination by the Company of this Agreement by reason of the Consultant’s fraud
or misconduct that materially and adversely affects the Company, negligence in
the performance of Services, persistent failure to perform the Services as
contemplated herein, conduct that
discredits the Company, or material breach of the terms of this Agreement,
provided in each case that the Consultant has been provided written notice of
the facts and circumstances alleged to constitute Cause hereunder and at least
30 days’ opportunity to cure the same, or (b) termination by the Company of this
Agreement for any reason or no reason if “Milestone 1” (as defined in Exhibit B) has
not occurred on or before one year after the Effective Date.
Limitation of
Liability.
Sole Remedy. The
sole remedy for any breach of this Agreement by the Consultant shall be to
reimburse the Company for actual fees received by the Consultant relating to
Services that were not provided as a result of the breach. In no
event shall the Consultant’s aggregate liability to the Company under this
Agreement exceed the amount of cash fees received by the Consultant
hereunder.
Limitation of
Liability. IN NO EVENT SHALL THE CONSULTANT, ITS AFFILIATES,
OFFICERS, AGENTS, MANAGERS OR MEMBERS (COLLECTIVELY, THE “CONSULTANT AFFILIATES”) BE
LIABLE FOR ANY DAMAGES INCLUDING LOSS OF USE, INTERRUPTION OF BUSINESS, OR ANY
INDIRECT, SPECIAL OR INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING
LOSS OF PROFITS) IN CONNECTION WITH THE TERMS OF THIS AGREEMENT, REGARDLESS OF
THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT
PRODUCT LIABILITY, OR OTHERWISE, EVEN IF THE CONSULTANT HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
Other
Engagements. Nothing in this agreement shall preclude the
Consultant from entering into agreements similar to this Agreement with other
parties. In addition, the Company acknowledges and agrees that the
Consultant may, concurrent with engagements undertaken for the Company and in
the future, undertake consulting or service engagements with other persons or
entities whose business or products may be similar to or competitive with the
business or products of the Company.
Independent
Contractor/Taxes. The Consultant is not an agent or employee
of the Company and is not authorized to act on behalf of the
Company. Except as required by a final determination by the Internal
Revenue Service or state taxing authority and upon due notice to the other
party, the Consultant and the Company each agrees that it will treat the
Consultant as an independent contractor for tax purposes and file all tax and
information returns and pay all applicable taxes on that basis.
Notices. Any
notice given pursuant to this Agreement shall be in writing and shall be
effective immediately upon hand delivery or delivery by courier to the other
Party or one business day after facsimile transmission to the other Party or
five business days after deposit of the notice in the United States first class
mail, by registered or certified mail, postage prepaid, to the addresses set
forth below the respective signature lines of the Parties.
Arbitration. Any
controversy or claim arising out of, or relating to, this Agreement or the
breach of this Agreement will be settled by arbitration by, and in accordance
with the applicable Commercial Arbitration Rules of the American Arbitration
Association and judgment upon the award rendered by the arbitrator(s) may be
entered in any court having jurisdiction. The arbitrator(s) will have
the right to assess, against a Party or among the Parties, as the arbitrator(s)
deem reasonable, (a) administrative fees of the American Arbitration
Association, (b) compensation, if any, to the arbitrator(s) and (c) attorneys’
fees incurred by a party. Arbitration hearings will be held in the
county of defendant. The provisions of California Code of Civil
Procedure Section 1283.05 will apply to any arbitration.
No Joint
Venture. Nothing in this Agreement shall be construed to make
the Parties hereto joint venturers or partners or to create any relationship of
principal and agent. Neither Party has the power or authority to
commit or bind the other Party without such other Party’s prior written
consent.
Governing
Law. This Agreement shall be governed by and interpreted
pursuant to the laws of the State of California, excluding those laws that
direct the application of the laws of another jurisdiction.
Waiver. The waiver
of any term or condition contained in this Agreement by any Party shall not be
construed as a waiver of a subsequent breach or failure of the same term or
condition or a waiver of any other term or condition contained in this
Agreement.
Assignment. The
rights and liabilities of the Parties hereto shall bind and inure to the benefit
of their respective successors, heirs, executors and administrators, as the case
may be; provided, however, that as the Company has specifically contracted for
the services to be provided by the Consultant hereunder, the Consultant may not
assign or delegate the Consultant’s obligations under this Agreement either in
whole or in part without the prior written consent of the Company.
Headings. The
section headings used in this Agreement are intended for convenience of
reference and shall not by themselves determine the construction or
interpretation of any provision of this Agreement.
Survival of
Provisions. Each and all of the terms, provisions and/or
covenants of each of Sections 4, 5, 7 and 9 through 21 and Section 2 (a) of
Exhibit of this Agreement shall, for any and all purposes whatsoever, survive
the termination of this Agreement.
Entire Agreement;
Modifications. Except as otherwise provided herein or in the
exhibits hereto, this Agreement represents the entire understanding among the
Parties with respect to the subject matter of this Agreement, and this Agreement
supersedes any and all prior and contemporaneous understandings, agreements,
plans, and negotiations, whether written or oral, with respect to the subject
matter hereof, including, without limitation, any understandings, agreements, or
obligations respecting any past or future compensation, bonuses, reimbursements,
or other payments to the Consultant from the Company. All
modifications to the Agreement must be in writing and signed by each of the
Parties hereto.
Counterparts. 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.
[Remainder
of Page Intentionally Left Blank]
IN
WITNESS WHEREOF, the Parties have executed this Consulting Services Agreement as
of the date first above written.
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Accelerated
Acquisitions V, Inc.
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By:
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/s/
Xxxxxxx X. Aland
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Name:
Xxxxxxx X. Aland,
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Title:
Chairman and Chief Executive Officer:
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Address:
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00000
Xxxxxxxxx Xx Xxx 0000
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Xxxxxx,
XX 00000
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Accelerated
Venture Partners LLC
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By:
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/s/
Xxxxxxx Xxxxx
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Name: Xxxxxxx
Xxxxx
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Title:
Managing Member
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Address:
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0000
Xxxxxxx Xxxxx, Xxxxx 000
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Xxxxxx
Xxxx, XX 00000
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EXHIBIT
A
SCOPE
OF SERVICES
Subject
to the terms and conditions of the Agreement to which this Exhibit A is
attached, the Company hereby appoints the Consultant its nonexclusive agent to
assist the Company by reviewing the Company’s business plan, identifying and
introducing prospective financial and business partners to the Company who will
close upon a financing transaction as described in greater detail in Exhibit B
to this Agreement (collectively, the “Services”).
The
Consultant will report to the Company’s Chief Executive Officer and Board of
Directors.
The
Company will not control in any way the methods used by the Consultant in
performing the Services. The Consultant will at all times, and at the
Consultant’s own expense, maintain all facilities, equipment, and
instrumentalities required to perform the Services, including without
limitation, office space, computer, printer, internet connection, facsimile,
paper, office supplies and telephone.
EXHIBIT
B
COMPENSATION
AND EXPENSES
1. Equity
Compensation. In consideration of providing the Services, the
Company will issue to the Consultant shares of the Company’s common stock (the
“Shares”)
representing 7.5% of the Company’s total “fully-diluted” capitalization, i.e.,
including all shares of common stock, preferred stock and other equity on an
as-converted basis plus all shares issued or issuable upon exercise of options,
warrants or other convertible securities and all shares reserved under any
employee stock option or similar plan(s). The Shares will be issued
within 10 days after the Effective Date at a purchase price of $0.0001
per share payable by the Consultant in cash. The Shares will
be subject to a right of repurchase in favor of the Company at $0.0001
exercisable upon termination of this Agreement pursuant to Section 8, which
right of repurchase will lapse as follows:
(a) The
right of repurchase will lapse with respect to 70% of the Shares upon a
successful reverse merger with a publicly listed SEC reporting entity or
Company’s securing at least $5 million in available cash, whether from debt or
equity investment, grant funding, litigation proceeds, a combination thereof or
any other source (“Milestone
1”), provided that the Consultant’s provision of Services hereunder has
materially contributed to the Company’s achievement of Milestone 1.
(b) The
right of repurchase will lapse with respect to 20% of the Shares upon the
Company’s securing at least $10 million in available cash (inclusive of any
amounts already attributed to Milestone 1), whether from debt or equity
investment, grant funding, litigation proceeds, a combination thereof or any
other source (“Milestone
2”), provided that the Consultant’s provision of Services hereunder has
materially contributed to the Company’s achievement of Milestone 2.
(c) The
right of repurchase will lapse with respect to 10% of the Shares upon the
Company’s securing at least $15 million in available cash (inclusive of any
amounts already attributed to Milestone 1), whether from debt or equity
investment, grant funding, litigation proceeds, a combination thereof or any
other source (“Milestone
3”), provided that the Consultant’s provision of Services hereunder has
materially contributed to the Company’s achievement of Milestone 3.
For
the sake of clarity, if the Company secures sufficient cash to qualify for a
Milestone described above, all prior Milestones shall also be deemed to have
been met, i.e., if the Company has not yet achieved Milestone 1 but then secures
$6 million in available cash, all Milestones will be deemed to have been
met.
Should
the Consultant identify or introduce an investor to the Company, and should the
Company decide to accept an investment from that investor that is less than the
Milestone 1 minimum limit, then the compensation of Shares to the Consultant
will be prorated accordingly. Notwithstanding anything above to the
contrary, the Company’s right of repurchase with respect to any Shares will
lapse in its entirety upon completion of all milestones, a merger, acquisition
or other change of control of the Company.
2. Cash
Compensation. From the effective date herein, until Milestone
1 has been reached, the Company agrees to pay the Consultant at the rate of
$87,500 per month of Services. The Company will defer payment of such
cash compensation until the Company has achieved Milestone 1. Notwithstanding the
foregoing, if the Company terminates the Agreement for Cause prior to
Milestone 1, the Consultant will not be entitled to, and
hereby waives any right to receive, any accrued cash compensation
hereunder. Upon achievement of Milestone 1, the Company will
immediately pay all accrued cash compensation hereunder and will thereafter
continue to pay the Consultant on a monthly basis) at the rate of $87,500 per
month of Services until the Company has achieved Milestone
2. Beginning in the month following achievement of Milestone 2, the
Company will pay the Consultant (on a monthly basis) at the rate of $87,500 per
month of Services. Notwithstanding the foregoing, any cash
compensation otherwise payable by the Company to the Consultant pursuant to this
provision (a) in excess of $350,000 (milestone cap) may be deferred until
achievement of Milestone 2, and (b) in excess of $700,000 may be deferred until
achievement of Milestone 3. At no time under this Agreement shall the
total sum payable to the Consultant in any Milestone period exceed
$1,050,000. The total cash compensation to the consultant after
achievement of all milestones shall not exceed $1,005,000, unless the amount
received by the company is more than Milestone 3 as outlined in section (a)
below. Upon termination of this Agreement for any reason, the
Consultant will waive any and all entitlement to cash compensation which has
been deferred pursuant to the foregoing provisions but not yet paid due to the
Company’s failure to achieve the applicable Milestone.
The
Parties agree that if Consultant identifies and introduces the Company to a
potential funding source and such potential funding source during or after the
Term of this Agreement provides equity or debt Financing that is an amount less
than Milestone 1, in between any of the above Milestones, greater than the above
Milestones and/or any Subsequent Financing Transaction occurs, the cash
compensation earned by the Consultant under this Agreement will be prorated
according to the above Milestones and billed to and paid by the
Company.
3. Accelerated Cash
Payments. Notwithstanding the foregoing, during the 30 day
period following each Milestone, the Company may elect to terminate this
Agreement and forego all future cash payments to the Consultant by paying a lump
sum amount (the “Buyout”)
equal to the then monthly cash rate for Services set forth above times the
number of months remaining in the term of this Agreement, pro rated if necessary
for any partial months, times 95%. If the Company chooses to pay the
Buyout, the Company’s right of repurchase with respect to the Shares as set
forth in Section 1 of this Exhibit B, if any,
will lapse in its entirety.
4. Expense
Reimbursement. The Company agrees to reimburse the Consultant,
within ten business days of presentment of receipts in support thereof, for all
pre-approved reasonable, ordinary and necessary travel and entertainment
expenses incurred by the Consultant in conjunction with the Consultant’s
services to the Company, consistent with the Company’s standard reimbursement
policy. The Company shall pay travel costs incurred by the Consultant
in conjunction with the Consultant’s services to the Company consistent with the
Company’s standard travel policy.
5. Participation
Rights. The Company will allow the Consultant to invest up to
an additional $5 million in any future debt or equity offering of the Company on
the same terms and conditions offered to other participants in such
offerings. The Consultant will not be obligated to participate in any
such offerings.
