CONSULTING AGREEMENT
EXHIBIT
10.3
This
Consulting Agreement (this “Agreement”) is made as
of January 13, 2010 , by and between Mikojo
Inc. (the “Company”) and
Xxxxxx Xxxx, vSource1, Inc. and Scarborough Capital, Inc (the “Consultant”) (each a “Party” and collectively
referred to hereafter as the “Parties”).
WITNESSETH:
WHEREAS,
the Consultant has significant expertise in the field of public and private
finance, securities offerings, mergers, acquisitions and related transactions;
WHEREAS, the Company is considering various strategic options with respect to
financing the development 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:
1. Definitions. Unless otherwise
defined in this Agreement, terms appearing in initial capitalized form 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 financing
and 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 Transaction
(d) Under
no circumstances will the Consultant provide any Services which could require
its licensure as broker, dealer to be compromised.
3. Term
and Termination. The term of this engagement shall be for a period commencing
with the date of this Agreement and terminate upon any third
party financing contract being terminated by the investor
or company. .The term may only be extended upon the mutual written agreement of
the Parties.
4.
Consideration.
(a)
Subject to the condition precedent that the closing of one or more Transaction
(s) shall have occurred, in consideration for 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 3% of the
amount of fincancing made available for every month the funds are used to
facilitate the Company’s advertising placements for paying sponsors on the
Internet. In all cases, whether for one single investment or
cumulative investments the Consultant will be paid its proportional Consultant
Fee. The fees will be paid to the Consultant, simultaneously with any
distribution of profits or returns to each lender or investor.
(b) In
exchange for the fee payable to Consultant pursuant to Section 4(a), which
Consultant acknowledges as good and valuable consideration, 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.
Non-Circumvention. It is agreed by and between the parties to this Agreement
that the parties identified on Exhibit A to this Agreement were introduced to
the Company by the Consultant and the Company will not engage in any discussions
or enter into any transaction with such parties without the specific knowledge
of the Consultant. Consultant shall be deemed to be the “finder” with respect to
all such parties.
6.
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:
Copy to:
Xxxxxx Xxxx
vSource1
and Scarborough Capital
00
Xxxxxxx Xxxx
Xxxxx
Xxxx , XX 00000
000 000
0000
If to the
Company:
Copy to:
Xxxxx X. Xxxxx
0000
Xxxxxxx Xx., Xxxxx 000
Xxxxxx
Xxxx, XX 00000
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.
7.
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/ Xxxxxx Xxxx
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/s/ Xxxxx X. Xxxxx
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By:
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By:
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| Name: Xxxxxx Xxxx |
Name:
Xxxxx X. Xxxxx
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| Title: General Partner |
Title:
Chief Executive
Officer
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