SALES CONSULTING AGREEMENT
Exhibit
10.9
THIS SALES CONSULTING AGREEMENT
(“Agreement”) is entered into by and
between Amerivon Holdings, LLC, a Nevada limited liability company (“Amerivon”),
and aVinci Media, LC, a Utah limited liability company (“aVinci”), effective as
of July 1, 2008 (the “Effective Date”).
RECITALS
A. The
parties entered into a Sales Representation Agreement, on or about July 1, 2007,
and desire to terminate such agreement in its entirety with the $5,000 advanced
by aVinci to Amerivon being deemed earned by Amerivon and constituting payment
in full for all fees earned from July 1, 2007 through June 30,
2008.
B. aVinci
and Amerivon desire to enter into a new agreement whereby Amerivon will provide
retail sales channel consulting services including identifying, introducing and
helping aVinci negotiate agreements both directly with mass retailers and with
sales representatives and organizations where needed to sell into mass retailers
as set forth and agreed to herein.
Based upon the foregoing and the mutual
covenants contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties intending
to be legally bound hereto agree as follows:
AGREEMENT
1. Services. The retail
sales channel consulting services to be provided under this Agreement by
Amerivon include identifying, introducing, helping aVinci negotiate agreements
with sales representatives and organizations that can sell aVinci products into
mass retailers, and helping coordinate the efforts of contracted sales
representatives and organizations (collectively the “Services”).
2. Term. The
term of this Agreement is one year from the Effective Date subject to automatic
extensions from year-to-year thereafter unless cancelled at least 30 days before
the end of the then current term upon written notice from one party to the other
and also subject to cancellation as provided herein.
3. Fees. In
exchange for the Services, aVinci will pay Amerivon 1.25% of aVinci’s “Net
Sales” generated through “Mass Retail” (“Fees”). “Mass Retail” means any
retailer having more than 100 physical store locations. “Net Sales”
means revenue generated to aVinci through aVinci product sales in Mass Retail
less any discounts, freight, promotional allowances, returns, non-payments,
rebates and other customary allowances.
3.1 Fee
Payment. aVinci will pay any Fee due to Amerivon within 30
days of the end of the month during which Fees are earned and
collected. In the event a Fee is paid or not ultimately collected or
all or any part is refunded, aVinci will recover the amount of the Fee paid from
Amerivon in the form of offsets to Fees owed on other business. All
Fees will be paid less any required federal, state, or other required
withholdings.
3.2 Options. aVinci
previously granted Amerivon 1,500,000 options (pre-merger with Secure Alliance
Holdings Corporation) in conjunction with the previous Sales Representation
Agreement which are the subject of a separate Stock Option
Agreement. Such options continue hereunder with the parties
acknowledging that such options on a post-merger basis would allow Amerivon to
purchase up to 653,222 shares of common stock in each of the years 2008 and 2009
upon achievement of certain benchmarks in Net Sales generated in Mass Retail in
2008 and 2009. The benchmarks for 2008 are set forth on Exhibit
A. The parties agree to negotiate in good faith benchmarks for 2009
in November 2008 with maximum vesting occurring at $10 million in Net Sales
generated in Mass Retail in 2009. Amerivon has the right to
distribute these options to sales representatives and organizations as mutually
determined with aVinci.
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4. Termination. After
the initial 12-month term, either party may terminate this Agreement upon 90
days written notice to the other party. In the event of termination
for any reason other than Amerivon’s material breach, aVinci will continue to
pay all fees that become due during the 90 day notice period and for 90 days
thereafter.
5. Confidentiality. Both
parties have confidential information that includes valuable technical,
business, and financial information, and customer contacts, trade secrets, and
know-how relating to its technology, software, business contacts and business
and marketing plans (“Confidential Information”). Each party has and will
provide the other with such Confidential Information in conjunction with the
Services which will remain such party’s Confidential Information, and each party
agrees to hold such Confidential Information, and any previously disclosed
Confidential Information, in confidence and not to use the Confidential
Information commercially for its own benefit or the benefit of anyone else, and
not to use the Confidential Information for the purpose of developing or
improving such Confidential Information for anyone except the other
party. Each party will use at least reasonable care in protecting the
Confidential Information from unauthorized disclosure, loss, theft, or
misappropriation and will not disclose it to any third party or representative,
with our without authorization, if such disclosure would violate U.S.
law.
6. General
Provisions.
6.1 Independent Contractor
Relationship. The relationship between aVinci and Amerivon is
one of principal and independent contractor. Amerivon is not an
agent, employee, partner, joint venture, franchisee, or fiduciary of
aVinci. Subject to the limitations set forth herein, Amerivon will
have sole control of the manner and means of performing its obligations and
duties under this Agreement. Amerivon will bear all of its costs and
expenses, including, without limitation, motor vehicle, travel, entertainment,
office, rent, clerical, employee, tax, insurance, telephone and all other
selling and operating expenses Amerivon incurs, and aVinci will not in any way
be responsible or liable therefore. Amerivon will not have authority
or hold itself out as having authority to bind aVinci to any agreement with any
sales representative or organization.
6.2 Severability. Any
provision of this Agreement which is prohibited or unenforceable in any
jurisdiction will, as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof. To the extent permitted by applicable law, the parties hereby waive any
provision of law that prohibits or renders unenforceable provisions hereof in
any respect.
6.3 Assignment.
Amerivon’s rights and obligations hereunder will not be assignable or otherwise
transferable without the prior written consent of aVinci.
6.4 Successors. All of
the terms, covenants, representations, warranties, and conditions set forth in
this Agreement will be binding upon and inure to the benefit of and be
enforceable by the parties hereto and their respective successors, assigns, and
legal representatives.
6.5 Amendment and
Waiver. This Agreement may be amended, modified, superseded or
cancelled, and any of the terms, covenants, representations, warranties or
conditions hereof may be waived, only by a written instrument executed by the
parties or, in the case of a waiver, by or on behalf of the waiving party. The
waiver by any party at any time or times to require performance under any
provision hereof will in no manner effect such party’s right at a later time to
enforce the same provision or provisions.
6.6 Notices.
Notices and other communications provided for herein will be in writing and will
be delivered by hand or will be sent by telecopy (and if sent by telecopy, will
be confirmed by registered mail, return receipt requested, or by overnight mail
or courier, postage and delivery charges prepaid), to the last know business or
resident address or facsimile number of the party. Whenever any
notice is required to be given hereunder, such notice will be deemed given and
such requirement satisfied only when such notice is delivered or, if sent by
telecopy, when received. Addresses may be changed upon notice of such
change given as provided in this Section.
6.7 Jurisdiction and Governing
Law. The parties consent, agree, and stipulate that this Agreement will
be deemed fully executed and performed in the State of Utah and will be governed
by and construed in accordance with the laws thereof; and in any proceeding,
action, or appeal on any matter related to or arising out of this Agreement will
be subject to the exclusive jurisdiction of a court of appropriate jurisdiction
in Salt Lake County, State of Utah.
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6.8 Attorney’s
Fees. If any legal action is necessary to enforce the terms
and conditions of this Agreement, the prevailing party in such action will be
entitled to recover all costs of suit and reasonable attorney’s fees as
determined by the court.
6.9 Entire
Agreement. This Agreement contains
the entire understanding between the parties and supersede any prior written or
verbal agreements between them respecting the subject matter
hereof. Upon the effectiveness hereof, any such prior verbal or
written agreements will terminate.
6.10 Headings. Section
and other headings contained in this Agreement are for convenience of reference
only and will not effect in any way the meaning or interpretation of this
Agreement.
IN WITNESS WHEREOF, the
Parties have caused this Agreement to be executed as of the day and year first
above written.
| “aVinci” | “Amerivon” | |||
| aVinci Media, LC | Amerivon Holdings, LLC | |||
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Xxxxx
X. Xxxxxxx, President
|
Xxx
X. Xxxxxx, Chief Executive Officer
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Exhibit
A
Incremental
Vesting of Option
The
parties agree that the Options granted to Amerivon and subject to performance
vesting for 2008 and 2009, will also be subject to incremental vesting (up to a
maximum aggregate of 653,222 shares each calendar year) as set forth
below:
2008
Total Net Sales
|
Total Net Sales
|
Incremental Vesting*
|
Aggregate Vesting
|
||
|
$500,000
|
87,096
|
87,096
|
||
|
$1.0
million
|
87,096
|
174,193
|
||
|
$1.5
million
|
43,548
|
217,741
|
||
|
$2.0
million
|
43,548
|
261,289
|
||
|
$2.5
million
|
43,548
|
304,837
|
||
|
$3.0
million
|
43,548
|
348,385
|
||
|
$3.5
million
|
76,209
|
424,594
|
||
|
$4.0
million
|
76,209
|
500,804
|
||
|
$4.5
million
|
76,209
|
577,013
|
||
|
$5.0
million
|
76,209
|
653,222
|
*No incremental pro-rata vesting
between Net Sales tiers.
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