CONSULTING SERVICES AGREEMENT
Exhibit 4.10
This
Consulting Services Agreement (this “Agreement”) is
entered into as of January 15, 2010 by and between DAL GROUP, LLC, a Delaware
limited liability company (“DAL”), and Chardan
Capital LLC, (“Consultant”). DAL
and Consultant are sometimes hereinafter individually as a “Party” and
collectively referred to as the “Parties”.
Background
A.
DAL desires to retain the services of Consultant and Consultant desires to
provide services to DAL.
Agreements
1. Provision
of Services.
(a) During
the Term (as defined below), Consultant will provide consulting services with
respect to DAL’s business as the board of managers of DAL may reasonably request
from time to time (the “Services”). The
Parties agree that each will cooperate with the other regarding the details of
the specific Services to be provided.
(b) Consultant
will devote such time, attention, and energy to the business and affairs of DAL
deemed necessary by Consultant to perform the Services, but in no event will
Consultant be required to devote more than an aggregate of 100 hours per
calendar month.
(c) Consultant
warrants that all Services will be performed in a good, professional,
workmanlike and competent manner, in conformance with all applicable
professional standards and the requirements of this
Agreement. Consultant agrees to provide the Services in accordance
with applicable polices and procedures of DAL.
(d) Consultant
agrees to provide the Services using personnel reasonably acceptable to
DAL.
2. Compensation. During
the Term, Consultant shall receive an annual consulting fee of $480,000, paid in
equal monthly installments of $40,000, paid in arrears, commencing on the date
that is thirteen months after the date of this Agreement, and on the same day of
each month thereafter.
3. Term. The term of
this Agreement (the “Term”) shall commence
on the first anniversary of the date of this Agreement and shall terminate on
the fourth anniversary of the date of this Agreement.
4. Nature of
Relationship. Consultant shall be deemed to be an independent
contractor and shall not be authorized to manage or direct the management of the
affairs of, act in the name of or bind DAL. DAL shall not be
obligated to follow or accept any advice or recommendation made by Consultant,
and the management, policies and operations of DAL shall be the sole
responsibility of the management of DAL. Nothing set forth in this
Agreement shall be deemed to prohibit Consultant from serving any other person
or entity in any capacity Consultant may deem appropriate or from conducting its
business and affairs in any manner it may elect; provided, however, during the
Term, Consultant and its Affiliates will not render services to another person
or entity in a manner that might involve an actual or potential conflict of
interest with respect to DAL or any of its Affiliates.
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5. Confidentiality.
(a) In
consideration of the payments to be received by Consultant under this Agreement,
in recognition of the highly competitive nature of the industries in which DAL
conducts its business, and to further protect the goodwill of DAL and to promote
and preserve its legitimate business interests, Consultant agrees that
Consultant shall not disclose at any time, except as ordered by a court of
competent jurisdiction, to anyone other than Consultant’s employees, directors,
officers, advisors, agents or controlling persons (it being understood that such
persons (i) will be bound by this Section 5 and that Consultant will inform such
persons of the confidential nature of such information and shall be directed by
Consultant, and each will expressly agree, to treat such information as
confidential in accordance with this Section 5 or (ii) are already bound to
maintain the confidentiality of any such information provided to such persons by
Consultant) any confidential information or trade secret of DAL, its Affiliates
or any customer of DAL or use such confidential information or trade secret for
its or his own benefit or for the benefit of third parties. If
ordered by a court of competent jurisdiction to disclose confidential
information or trade secrets, Consultant shall provide written notice to DAL of
such order promptly after receipt and shall not comply with such order prior to
providing such notice.
(b) For the
purpose of this Agreement, the term “confidential information” includes
information concerning the business affairs of DAL or its Affiliates, contact
information of current, former or prospective customers, suppliers or clients of
DAL and its Affiliates, planned and potential financial and business plans,
methodologies of doing business, employee lists and telephone numbers, any
information or documents that relate to, refer to, contain, or constitute trade
secrets, and computer/software programs and associated documentation and
material (i) which are proprietary to DAL or its Affiliates or (ii) which are
proprietary to a third party from which DAL has purchased the right to use such
programs or material and with respect to which DAL or its Affiliates are under
an obligation to prevent disclosure to persons not authorized by DAL, its
Affiliates or the third party owner to receive such information. The
term “confidential information” does not include information which (i) becomes
generally available to the public other than by breach of this Agreement, or
(ii) Consultant learns from a third party without knowledge of a breach of
confidentiality by such third party to DAL or its Affiliates. The
confidential information shall remain the sole and exclusive property of DAL and
its Affiliates, their respective customers and third party owners
thereof.
(c) Consultant
shall use the confidential information and trade secrets only in connection with
the Services . Consultant will not copy any of the Confidential
Information for any purpose except with the express consent of
DAL. Consultant will abide by and be bound by the provisions of any
agreements between DAL, its Affiliates and any of its customers, clients or
other third parties of which Consultant is aware.
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(d) Upon
termination of this Agreement, or at any other time at DAL’s request, Consultant
agrees to destroy or deliver promptly to DAL all manuals, letters, notes,
notebooks, reports, formulae, computer programs and associated documentation and
material, memoranda, customer’s lists, diskettes or other medium for electronic
storage of information and all other materials and all copies thereof relating
in any way to DAL, its Affiliates, their respective customers or their
respective businesses, in any way obtained by Consultant which are in
Consultant’s possession or under its control, including, but not limited to all
Confidential Information in its possession, and Consultant will not make or
retain any copies of any of the foregoing and will so represent to DAL upon
termination of this Agreement. Notwithstanding the foregoing,
Consultant need not destroy or deliver to DAL and may retain any materials
required to be maintained pursuant to Consultant’s document retention policies
or that are “backed-up” by Consultant pursuant to normal policies or
procedures.
(e) Consultant
understands that monetary damages alone would be insufficient to make DAL whole
in the event Consultant breaches, or is about to breach, any of the provisions
of this Section
5. Therefore, Consultant agrees that, in addition to any
monetary damages or other relief to which DAL may be entitled, DAL shall be
entitled to obtain immediate and permanent injunctive relief in the event of any
breach or threatened breach by Consultant of any provision of this Agreement,
without the necessity of proving actual damages or the posting of any bond, and
Consultant waives any requirement for advance notification prior to the entry of
such injunctive relief. Failure to seek any or all remedies in one
case does not restrict DAL from seeking any remedies in another
situation. Such action by DAL shall not constitute a waiver of any of
its rights.
6. Entire Agreement;
Amendment. With respect to the subject matter of this
Agreement, this Agreement supersedes all previous contracts and constitutes the
entire agreement between the Parties. Neither Party will be entitled
to benefits other than those specified herein. No prior oral
statements or contemporaneous negotiations or understandings or prior written
material not specifically incorporated herein will be of any force and effect,
and no changes in or additions to this Agreement will be recognized unless
incorporated herein by amendment as provided herein, such amendment(s) to become
effective on the date stipulated in such amendment(s). No provision
of this Agreement shall be deemed waived, amended, supplemented or modified by
any Party, unless such wavier, amendment, supplement or modification is in
writing and signed by an authorized representative of the Party against whom it
is sought to enforce such waiver, amendment, supplement or
modification. The Parties specifically acknowledge that, in entering
into and executing this Agreement, the Parties rely solely upon the
representations and agreements contained in this Agreement and no others, other
than agreements or provisions incorporated in this Agreement by
reference.
7. Governing Law; Venue;
Jurisdiction. This Agreement, and all matters arising under or
related hereto, shall be governed according to the laws of the State of Florida,
without respect to its conflict of law principles. Each Party hereby
consents to the exclusive jurisdiction of the courts of the State of Florida and
of the United States of America in the County of Broward for any actions, suits
or proceedings arising out of or relating to this Agreement and the transactions
contemplated hereby (and each Party agrees not to commence any action, suit or
proceeding relating thereto except in such courts).
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8. Notices. Any notice, demand,
approval, consent or communication required, permitted, or desired to be given
hereunder, will be in writing and will be served on the Parties at the following
respective addresses:
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If
to DAL:
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Law
Offices of Xxxxx X. Xxxxx, P.A.
000
X. Xxxx Xxxxxx Xxxx
Xxxxx
000
Xxxxxxxxxx,
Xxxxxxx 00000
ATTN: Xxxxx
X. Xxxxx
Facsimile:
000-000-0000
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with
a copy to:
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Xxxxxx
Xxxxxxx PLLC
000
Xxxxxxxxxxx Xxxxxx
Xxxxxxx,
XX 00000
Attn:
Xxxxxx Xxxxxx
Facsimile: 000-000-0000
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If
to Consultant:
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Chardan
Capital, LLC
Suite
18E, Tower A
Oriental
Kenzo Plaza
00
Xxxxxxxxxxxxx Xxxxxx
Xxxxxxx,
000000, Xxxxx
Fax
No.: 00-00-00000000
Attn: Li
Zhang
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with
a copy to:
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Loeb
& Loeb LLP
000
Xxxx Xxxxxx
Xxx
Xxxx, XX 00000
Attn: Xxxxxxxx
X. Xxxxxxxx
Facsimile: 000-000-0000
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or such
other address, or to the attention of such other person or officer, as any Party
may by written notice designate. Any notice, demand, or communication
required, permitted, or desired to be given hereunder will be sent either by
hand delivery, by prepaid certified or registered mail, return receipt
requested, postage prepaid in the United States Mail, by a nationally recognized
overnight courier, or via facsimile or other electronic transmission (including
transmission in portable document format by electronic mail). If any
notice, demand or communication is sent by facsimile or electronic mail
transmission, an original must be simultaneously sent by one of the
foregoing mail or courier methods. All such notices, demands or
communications shall be deemed to have been received (i) if by personal
delivery, facsimile machine or other electronic transmission (including
transmission in portable document format by electronic mail), on the date after
such delivery, (ii) if by certified or registered mail, on the third business
day after the mailing thereof or (iii) if by next-day or overnight courier or
delivery, on the date of such delivery.
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9. Severability. The
Parties have negotiated and prepared the terms of this Agreement in good faith
with the intent that each and every one of the terms, covenants and conditions
herein be binding upon and inure to the benefit of the respective
Parties. Accordingly, if any one or more of the terms, provisions,
promises, covenants or conditions of this Agreement or the application thereof
to any person or circumstance is adjudged to any extent invalid, unenforceable,
void or voidable for any reason whatsoever by a court of competent jurisdiction
or an arbitration tribunal, such provision will be as narrowly construed as
possible, and each and all of the remaining terms, provisions, promises,
covenants and conditions of this Agreement or their application to other persons
or circumstances will not be affected thereby and will be valid and enforceable
to the fullest extent permitted by law. To the extent this Agreement
is in violation of any applicable laws, the Parties shall negotiate in good
faith to amend this Agreement, to the extent possible consistent with its
purposes, to conform to applicable laws. Neither Party shall claim or
assert illegality as a defense to the enforcement of this Agreement or any
provision hereof; instead, any such purported illegality shall be resolved
pursuant to this Section
9.
10. Assignment. This
Agreement and all of the provisions hereof shall be binding upon and inure to
the benefit of each of the Parties and their respective successors and permitted
assigns. Any purported assignment in violation of this Section 10 will be
void and of no effect. Consultant may not delegate the performance of
any Services to be provided under this Agreement to any party, other than one or
more of its Affiliates that normally performs such Services, provided, however,
that notwithstanding the foregoing, Consultant shall remain fully responsible
for compliance with the terms of this Agreement the same as if such delegation
were not effected.
11. Further
Assurances. Each Party agrees to do and perform, from time to
time, any and all acts and to execute any and all further instruments required
or reasonably requested by the other Party in order to more fully effect the
purposes of this Agreement.
12. No Waiver; Cumulative
Remedies. No failure to exercise and no delay in exercising,
on the part of a Party, any right, remedy, power or privilege hereunder, shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein
provided are cumulative and not exhaustive of any rights, remedies, powers and
privileges provided by law.
13. Counterparts;
Effectiveness. The Parties may execute this Agreement in
separate counterparts, each of which shall be deemed an original and all of
which together will constitute one and the same instrument. To the
extent signed and delivered by means of a facsimile machine or other electronic
transmission (including transmission in portable document format by electronic
mail), this Agreement shall be treated in all manner and respect and for all
purposes as an original and shall have the same binding legal effect as if it
were the original signed version thereof delivered in person. None of
the undersigned shall raise the use of a facsimile machine or other electronic
transmission to deliver a signature or the fact that such signature was
transmitted or communicated through the use of a facsimile machine or other
electronic transmission as a defense to the enforceability of this Agreement and
each of the undersigned forever waives any such defense.
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14. Definitions
and Construction.
(a) “Affiliate” means a
person that directly or indirectly, through one or more intermediaries,
controls, is controlled by, or is under common control with, the first mentioned
person.
(b) All
references in this Agreement to “Sections” refer to the sections of this
Agreement. The section headings and titles appearing in this Agreement are
inserted only as a matter of convenience and in no way define, limit, construe,
or describe the scope or extent of such section or in any way affect this
Agreement or the interpretation hereof.
(c) All
references to “$” or “dollars” will be to United States dollars and all
references to “days” will be to calendar days unless otherwise
specified.
(d) As used
in this Agreement, neutral pronouns and any variations thereof shall be deemed
to include the feminine and masculine and all terms used in the singular shall
be deemed to include the plural, and vice versa, as the context may
require.
(e) The words
“hereof”, “herein” and “hereunder” and other words of similar import refer to
this Agreement as a whole, as the same may from time to time be amended or
supplemented, and not to any subdivision contained in this
Agreement.
(f) The word
“including” when used herein is not intended to be exclusive and means
“including, but not limited to.” The word “or” when used herein is
not intended to be exclusive unless the context clearly requires
otherwise.
(g) All
provisions of this Agreement have been mutually negotiated and
drafted. The provisions of this Agreement will be interpreted and
construed in accordance with their fair meanings, and not strictly for or
against either Party, regardless of which Party may have drafted this Agreement
or any specific provision.
15. Enforcement. In the
event either Party resorts to legal action to enforce or interpret any provision
of this Agreement, the prevailing Party will be entitled to recover the costs
and expenses of such action so incurred, including reasonable attorney’s
fees.
[Remainder intentionally left blank;
signature page follows.]
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IN
WITNESS WHEREOF, the Parties have executed this Consulting Services Agreement as
of the date first written above.
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DAL
GROUP, LLC
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By: FLATWORLD
DAL LLC, its Member
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By: NAGINA
ENGINEERING INVESTMENT
CORP., its
Member
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By:
____________________________________
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Name: Xxx
X. Xxxxx
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Title: President
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CHARDAN
CAPITAL LLC
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By:
_____________________________________
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| Its: ______________________________________ | ||
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