ADVISORY AGREEMENT
and
among Kinerja Pay Corp., a Delaware Corporation
(“KPAY”
or the “Company”), Blockchain
Industries, Inc., a Nevada Corporation (“BII”) and Fintech
Financial Consultants, Inc, a Nevada corporation
(“FFCI”). KPAY, BII and
FFCI are referred to collectively as the “Parties.” BII and FFCI
are referred to collectively as the “Advisors.”
WHEREAS, KPAY is planning to offer up to
Six Million U.S. Dollars ($6,000,000) of new digital tokens
created, allotted and issued pursuant to a future initial coin
offering (“ICO”).
WHEREAS, the Parties anticipate that the
ICO will be conducted on a cryptocurrency exchange
(“Exchange”) to be
established in Southeast Asia and owned by the parties through a
newly-formed entity (the “Exchange
Entity”).
WHEREAS, in compliance with U.S.
securities laws, no citizen, resident or domiciliary of the U.S.,
Puerto Rico, the U.S. Virgin Islands or any other possessions of
the U.S. shall be allowed to purchase any tokens pursuant to the
ICO on the Exchange.
WHEREAS, in addition to the ICO, the
Parties intend to develop the Exchange capability so as to
facilitate a variety of trading platforms for the execution of
transactions on a distributed ledger (the “Cryptotrading
Platform”).
WHEREAS, BII and FFCI each possess
expertise, experience and knowledge regarding complex financial and
technical infrastructures, digital currency platforms and networks
and blockchain technology to advise and consult with KPAY regarding
the ICO, the Exchange and the Cryptotrading Platform.
NOW, THEREFORE, in consideration of the
mutual covenants contained in this Agreement, the Parties hereby
agree as follows.
1.
Services
●
Consulting related
to the launch of the ICO and the establishment of a market on the
Exchange for which to trade and transfer digital
tokens;
●
Introductions to
third parties with marketing and advisory experience potentially
relevant to the ICO; and
●
Creation of the
Exchange and a full compliment of related pre-sale support,
functionality and acquisitions concerning digital
tokens.
|
2444602v.4
|
2.
Consideration
Within
ten (10) business days of the execution of this Agreement, KPAY
shall (i) issue to BII One Million (1,000,000) shares of the common
stock of KPAY and
(ii)
KPAY shall pay to BII Two Hundred Fifty Thousand U.S. Dollars
($250,000.00 USD) via wire transfer. BII and FFCI having made other
arrangements between themselves, and FFCI acknowledges and agrees
that it shall not receive any payment of cash or stock under this
Agreement.
3.
Cyrpto
Exchange
As part
of the Services, BII and FFCI will formulate, develop, structure,
establish, administer and operate the Exchange. Such Services may
include, but shall not be limited to consulting and advisory
services regarding trading, price discovery and
settlement/clearing, as well as, due diligence, escrow,
underwriting and providing communication platforms to enable the
adoption of new products and technologies and to attract
investors.
The
equity interests of the Exchange Entity shall be beneficially owned
one-half (50%) by KPAY and one-half (50%) by BII. BII and FFCI
having made other arrangements between themselves, and FFCI
acknowledges and agrees that FFCI shall have no equity interest in
the Exchange Entity.
The
Exchange Entity shall initially be funded pursuant to a
contribution by KPAY of Two Hundred Fifty Thousand U.S. Dollars
($250,000 USD) from the proceeds generated by the ICO (the
“Startup
Contribution”). KPAY and BII shall contribute such
additional capital to the Exchange Entity as mutually agreed upon
to be necessary and appropriate for the operation of the Exchange
and in proportion to their respective ownership interests in the
Exchange Entity. If BII and/or FFCI advance funds to the Exchange
Entity prior to KPAY’s funding of the Startup Contribution,
BII and/or FFCI, as the case may be, shall be entitled to prompt
reimbursement for the entire amount of such funds so
advanced.
4.
Term
of Service
The
term of this Agreement is one year. Notwithstanding anything herein
to the contrary, either party may terminate this Agreement at any
time for any reason by providing the other party with fifteen (15)
days prior written notice. KPAY acknowledges and agrees that the
Consideration provided to BII in Section 2 of this Agreement shall
be non-refundable and shall not be repaid to KPAY upon a
Termination of this Agreement regardless of reason.
5.
Representations
and Warranties of the Company
(a) The Company is a
corporation duly organized, validly existing and in good standing
under the laws of Delaware, and has the power and authority to own,
lease and operate its properties and carry on its business as now
conducted.
|
2444602v.4
|
(b) The execution,
delivery and performance by the Company of this Agreement is within
the power of the Company and has been duly authorized by all
necessary actions on the part of the Company. This Agreement
constitutes a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms,
except as limited by bankruptcy, insolvency or other laws of
general application relating to or affecting the enforcement of
creditors’ rights generally and general principles of equity.
To the knowledge of the Company, it is not in violation of (i) its
current certificate of incorporation or bylaws, (ii) any material
statute, rule or regulation applicable to the Company or (iii) any
material indenture or contract to which the Company is a party or
by which it is bound, where, in each case, such violation or
default, individually, or together with all such violations or
defaults, could reasonably be expected to have a material adverse
effect on the Company.
(c) The performance and
consummation of the transactions contemplated by this Instrument do
not and will not: (i) violate any material judgment, statute, rule
or regulation applicable to the Company; (ii) result in the
acceleration of any material indenture or contract to which the
Company is a party or by which it is bound; or (iii) result in the
creation or imposition of any lien upon any property, asset or
revenue of the Company or the suspension, forfeiture, or nonrenewal
of any material permit, license or authorization applicable to the
Company, its business or operations.
(d) No consents or
approvals are required in connection with the performance of this
Agreement, other than: (i) the Company’s corporate approvals;
(ii) any qualifications or filings under applicable securities
laws; and (iii) necessary corporate approvals for the authorization
of shares of common stock issuable pursuant to Section 2 of this
Agreement.
6.
Indemnification
The
Company shall be solely responsible for its products, the content
of its website, its IR/PR communications, and its advertising
materials, and any claims it makes about its products or its
business, and any losses related to the aforementioned, and shall,
at its sole cost and expense, defend and indemnify the Advisors and
hold the Advisors harmless from and against any claims, loss, suit,
liability or judgment, including reasonable attorney’s fees
and costs, arising out of, or in connection with Company’s
products, website, IR/PR communications or advertising
published/aired hereunder, including, without limitation, for any
violations of securities laws or regulations, misrepresentations,
false advertising, libel, slander, violation of right of privacy,
plagiarism, infringement of copyright or other intellectual
property interest, except in the case of the Advisors’
unauthorized or negligent use of any information prepared by
Company.
If the
Advisors, or their affiliates, or any person or entity controlled
by the Advisors or any of their affiliates, their respective
current and former officers, directors, partners, attorneys,
owners, employees and agents, and the heirs,
|
2444602v.4
|
successors and
assigns of all of the foregoing persons or entities (collectively,
the “Advisor
Indemnitees”) become involved in any capacity in any
pending or threatened claim, suit, action, proceeding,
investigation or inquiry (including, without limitation, any
shareholder or derivative action or arbitration proceeding)
(collectively, a “Proceeding”) (i) in
connection with or arising out of any untrue statements or alleged
untrue statements of a material fact contained in any information
supplied or provided by the Company; (ii) in connection with or
arising out of any omission or alleged omission to state therein a
material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading
contained in any information supplied or provided by the Company;
or (iii) otherwise in connection with any matter in any way
relating to or referring to this Agreement or arising out of the
matters contemplated by this Agreement, including, without
limitation, related services and activities prior to the date of
this Agreement, the Company agrees to indemnify, defend and hold
the Advisor Indemnitees harmless to the fullest extent permitted by
law from and against any losses, claims, damages, liabilities and
expenses in connection with any Proceeding, except to the extent
that it shall be determined by a court of competent jurisdiction in
a judgment that has become final in that it is no longer subject to
appeal or other review that such losses, claims, damages,
liabilities and expenses resulted solely from the willful
misconduct of the Advisors. In addition, if any of the Advisor
Indemnitees becomes involved in any capacity in any Proceeding in
connection with any matter in any way relating to or referred to in
this Agreement or arising out of the matters contemplated by this
Agreement, the Company will reimburse the Advisors Indemnitees for
their reasonable legal and other expenses (including the cost of
any investigation or preparation in connection with any Proceeding)
as such expenses are incurred by the Advisors Indemnitees in
connection therewith. If such indemnification is not available or
is insufficient to hold the Advisors Indemnitees harmless for any
reason, the Company agrees that in no event will it contribute less
than the amount necessary to assured that the Advisors Indemnitees
are not liable for losses, claims, damages, liabilities and
expenses in excess of the amount of fees actually received by the
Advisors pursuant to this Agreement.
The
Company further agrees that the Advisors, its affiliates, any
person or entity controlled by the Advisors or any of its
affiliates, their respective current and former officers,
directors, partners, attorneys, owners, employees and agents, and
the heirs, successors and assigns of all of the foregoing persons
or entities shall not have any liability to the Company, any person
asserting claims on behalf of or in the right of the Company, or
any of the Company’s directors, employees, owners, parents,
affiliates, security holders or creditors for, any losses, claims,
damages, liabilities and expenses in connection with any matter in
any way related to or referred to in this Agreement or arising out
of the matters contemplated by this Agreement, including without
limitation, related services and activities prior to the date of
this Agreement, except to the extent that it shall be determined by
a court of competent jurisdiction in a judgment that has become
final in that it is no longer subject to appeal or other review
that such losses,
|
2444602v.4
|
claims,
damages, liabilities and expenses resulted solely from the willful
misconduct of the Advisors.
The
Company will not settle, compromise or consent to the entry of any
judgment in or otherwise seek to terminate any Proceeding in
respect of which indemnity may be sought hereunder, whether or not
any of the Advisor Indemnitees is an actual or potential party to
such Proceeding without the Advisors prior written consent, unless
the Company has given the Advisors reasonable prior written notice
thereof and such settlement, compromise, consent or termination (i)
includes an unconditional release, in form and substance
satisfactory to the Advisors, of the Advisor Indemnitees from all
liability in any way related to or arising out of such Proceeding
and (ii) does not impose any actual or potential liability upon the
Advisor Indemnitees and does not contain any factual or legal
admission by or with respect to the Advisors Indemnitee or any
adverse statement with respect to the character, professionalism,
due care, loyalty, expertise or reputation of the Advisors
Indemnitee or any action or inaction by the Advisor Indemnitees.
The foregoing indemnity agreement shall be in addition to any
rights that any indemnified person may have at common law or
otherwise.
If the
Advisor Indemnitees are requested or required to appear as a
witness in any action brought by or on behalf of or against the
Company or any affiliate of the Company in which the Advisor is not
named as a defendant, the Company agrees to reimburse the Advisor
for all expenses incurred by such person in connection with such
person appearing and preparing to appear as a witness, including,
without limitation, the fees and disbursements of the
Advisor’s legal counsel.
7.
Confidential
Information
All
information supplied by one party to another party in connection
with this Agreement shall be given in confidence. Neither of the
parties shall disclose any such information to any third party
without prior written consent of the other party. Each party shall
take such precautions, contractual or otherwise, as shall be
reasonably necessary to prevent unauthorized disclosure of such
information by their employees during the term of this Agreement
and for a period of two (2) years thereafter.
8.
Entire
Agreement
This
Agreement contains the entire agreement among the parties relating
to the subject matter hereof and supersedes any and all prior
agreements or understandings, written or oral, between the parties
related to the subject matter hereof. No modification of this
Agreement shall be valid unless made in writing and signed by both
of the parties hereto.
|
2444602v.4
|
9.
Governing
Law
This
Agreement shall be governed by and construed in accordance with the
laws of the Commonwealth of Puerto Rico without reference to
conflict of laws principles.
10.
Waiver
The
waiver by either party of any breach or failure to enforce any of
the terms and conditions of this Agreement at any time shall not in
any way affect, limit, or waive such party’s right thereafter
to enforce and compel strict compliance with every term and
condition of this Agreement.
11.
No
Guarantee of Performance
The
parties hereto acknowledge and agree that the Advisors cannot
guarantee the results or effectiveness of any of the Services to be
performed by Advisors.
Rather,
the Advisors shall conduct their operations and provide their
services in a professional manner and in accordance with good
industry practice and all federal, state and local laws. Consultant
will use its best efforts and does not promise or guarantee
results.
12.
Further
Assurances
At any
time or from time to time after any issuance of securities, the
parties agree to cooperate with each other, and at the request of
the other party, to execute and deliver any further instruments or
documents and to take all such further action as the other party
may reasonably request in order to evidence or effectuate the
consummation of such issuance.
13.
Severability
The
parties agree to replace any such invalid or unenforceable
provision with a new provision that has the most nearly similar
permissible economic and legal effect.
14.
Arbitration
Any
controversy or claim arising out of or relating to this Agreement
that cannot be resolved by the Parties shall be settled by binding
arbitration. There shall be a single arbitrator selected to resolve
any such controversy. The arbitrator shall apply the substantive
law of the State of California, or federal law, if California law
is preempted. The arbitration shall be conducted in Santa Monica,
California, unless otherwise mutually agreed. Judgment on the award
rendered by the arbitrator may be entered in any court having
jurisdiction thereof.
|
2444602v.4
|
15.
Attorney’s
Fees
In the
event any party to this Agreement employs an attorney to enforce
any of the terms of the Agreement, the prevailing party shall be
entitled to recover its actual attorney’s fees and costs,
including expert witness fees.
The
parties represent and warrant that, on the date first written
above, they are authorized to enter into this Agreement in its
entirety and duly bind their respective principals by their
signatures below.
|
2444602v.4
|
This
Agreement shall be effective as of the date first written
above.
|
Blockchain
Industries, Inc. (“BII”)
|
Kinerja
Pay Corp (“KPAY”)
|
|
By:
/s/Xxxxxxx Xxxxxxxx
Title: Chief Executive Officer Date
signed: 1/11/2018
|
By: /s/ Xxxxx
Xx Xxxxx X. Xx
Title:
Chairman & Chief Executive Officer Date signed: 01/11/18
|
|
Fintech
Financial Consultants, Inc. (“FFCI”)
|
|
By:
/s/Xxxxxxx Xxxxx
Title:
Chief Executive Officer Date signed: 1/11/2018
|
|
2444602v.4
|
Appendix A
|
9
|
|
2444602v.4
|
