THIS CONSULTING AGREEMENT (the Agreement), is made and entered into as of this 1st day of August, 2009 (the "Effective Date"), by and among Atomic Guppy, Inc., a Nevada corporation (the Company) and iTella, Inc., (hereinafter referred to as Consultant). The Company and Consultant are sometimes collectively referred to as Parties or individually as a Party.
R E C I T A L S
WHEREAS, the Company is an emerging global provider of advanced communications services specializing in Virtual calling cards with 100% online distribution, residential and Business phone replacement services with low cost international termination and Toll Free-Virtual Fax with unified messaging capabilities utilizing Voice over Internet Protocol (VOIP) as its core technology component; and
WHEREAS, Consultant has significant experience with operations, administration, financing, marketing and day to day operations of the Company; and
WHEREAS, the Company desires to utilize Consultants business expertise and Consultant desires to provide services to the Company.
NOW, THEREFORE, in consideration of the mutual promises and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby expressly acknowledged, the Parties agree as follows:
A G R E E M E N T
Appointment. The Company hereby engages Consultant to furnish the services described in Article 3 of this Agreement, and Consultant hereby accepts such engagement. The Consultant agrees to use its best efforts to perform its duties, responsibilities, and obligations set forth in this Agreement.
Status of the Parties. It is expressly understood and agreed that in the performance of services under this Agreement, Consultant shall, at all times, be an independent contractor with respect to the Company, and not an agent, officer or employee of the Company. Further, it is expressly understood and agreed by the Parties that nothing contained in this Agreement is intended to create a joint venture, partnership, association or other affiliation or
like relationship between the Parties. In no event shall either Party be liable for the debts or obligations of the other Party. Consultant understands that it will not be treated as an employee for Federal tax purposes and that Consultant shall be responsible for all taxes, Social Security and FICA payments and withholding. Consultant shall not be entitled or eligible to receive workmans compensation insurance, disability or unemployment insurance benefits or any other employee benefits offered by the Company to its employees.
CONDITIONS AND TERMS OF AGREEMENT
The Company shall at all times retain and exercise full control over the operations of the Companys business. Nothing in this Agreement shall be deemed to delegate to Consultant any such control or responsibility. Consultant shall perform only those functions set forth in this Agreement or otherwise delegated by the Company, and shall be solely responsible for determining the manner in which the services are rendered. The Company shall provide Consultant with access to the Company's premises and its employees to enable Consultant to perform its services hereunder.
OBLIGATIONS OF CONSULTANT
Consultant shall devote its best efforts, skill and sufficient time and attention to carry out its responsibilities under this Agreement. Consultant shall report to the Chief Executive Officer of the Company (the "Chief Executive Officer") and the Board of Directors of the Company (the "Board of Directors"). Consultant shall provide, at the reasonable request of the Chief Executive Officer and the Board of Directors (the "Management"), advanced business strategy, financing, product development and marketing advice including but not limited to day to day operations. Consultant shall act in substantial accordance with all reasonable instructions and directives of Management Consultant shall comply with all written policies and procedures of the Company that are furnished to it and which are applicable to Company employees in general, in connection with the performance of services hereunder. Consultant shall be available, at reasonable times and upon reasonable notice, to consult with Management.
Consideration. In consideration of the services provided by Consultant pursuant to this Agreement, the Company shall pay to Consultant $200,000 on an annual (12 calendar month) basis for a period of six months, then after the first six months starting February 1st 2010 the annual basis will increase to $250,000. All payments shall be payable in equal monthly installments commencing on the Effective Date of August 1st 2009, and the above base compensation shall be in addition to the profit sharing compensation listed in section 5.2 and other benefits listed in Article V.
Reasonableness of Payments. The amounts paid to Consultant hereunder have been determined by the Parties in good faith and through arms-length negotiation and are intended to be based on fair market value for the services rendered by the Consultant.
BUSINESS EXPENSES; ADDITIONAL BENEFITS
Reimbursement of Expenses. The Company shall reimburse Consultant for business expenses incurred in the performance of its services pursuant to this Agreement, including, without limitation, travel, entertainment, and the use of any and all communications devices without limit. Requests for reimbursement must be in writing and accompanied by appropriate documentation.
Revenue sharing. Consultant shall be entitled to and is due to receive cash revenue sharing payments equal to nine percent (9%) of all current and future consolidated gross revenues, and are payable at such times as results are reported in the Companys quarterly Form 10-Qs or annual Form 10-K. This benefit is owing and due over the life of the contract and any renewals.
Office Space. The Company shall, at its sole expense, provide Consultant with a business office suitable for use by Consultant in the performance of its services at the Company's executive offices or at a location satisfactory to Consultant within a ten (10) mile radius of Consultant's address (as stated in the notice section hereof) and the Company shall pay the costs relating to the upkeep, maintenance, and use of such office together with reasonable and customary administrative support at such office.
Vacation. Executive shall be entitled to four weeks of paid vacation during each calendar year, taking into consideration the business needs of the Company. Consultant must be available during these four week for critical issue resolution.
Health Benefits. During the term, the Company shall pay for 100% of the costs to provide the Executive with family coverage for medical and dental. The Executive may elect not to receive the medical and dental coverage in which case an amount equal to the cost of said coverage will be paid to the Executive as additional compensation.
Vehicle. The Company shall provide Consultant with a vehicle allowance of $1,000 monthly in addition to reimbursement for insurance coverage.
Stock Option Plan. In consideration of the execution by Consultant of this Agreement and for services rendered hereunder, Consultant shall be eligible for grants of stock options pursuant to the Company's Parent 's Equity Incentive Plan in such amounts as may from time to time be determined by the Board of Directors (or the Stock Option/Compensation Committee), in its sole discretion..
Additional Benefits. Consultant shall be eligible to receive bonuses in such amounts and at such times as may be determined by the Board of Directors, in its sole discretion.
TERM OF AGREEMENT
Term. The term of this Agreement shall be for a period of ten (10) years from the Effective Date. This Agreement shall automatically renew for a Five (5) year period. This Agreement shall automatically terminate upon a Change of Control of the Company, as defined below, and (i) Consultant shall be entitled to receive a lump sum payment from the Company, within five (5) days after such termination, equal to the consideration, as defined in Section 4.1, 5.2, 5.4, 5.5 and 5.6 due to Consultant for the remaining term of this Agreement and (ii) any and all stock options granted to Consultant shall immediately vest, and become exercisable in accordance with their terms. Sections 5.2, 5.4, 5.5 and 5.6 shall be calculated throughout the 5 year term based on reasonable projections in conjunction with a six month trailing average.
Force Majeure. The inability of any Party to commence or complete its obligations hereunder by the dates required resulting from delays caused by strikes, walk-outs, insurrection, fires, floods, hurricane, freight embargoes, epidemics, quarantine restrictions, any law, act, order, proclamation, decree, regulation, ordinance or any other acts of any governmental or judicial authority, acts of God, acts of terrorists, war, emergencies, equipment failures, shortages or unavailability of materials, unavailability of necessary utilities or other similar causes beyond the Partys reasonable control which shall have been timely communicated to the other Party, shall extend the period for the performance of the obligations for the period equal to the period(s) of any such delays(s); provided that such Party shall continue to perform to the extent feasible in view of such force majeure eve nt.
Change in Control of the Company Defined. The term Change in Control of the Company shall mean (i) the approval by the shareholders of the Company 's Parent of a reorganization, merger, consolidation or other form of corporate transaction or series of transactions, in each case, with respect to which persons who were the shareholders of the Company immediately prior to such reorganization, merger or consolidation or other transaction do not, immediately thereafter, own more than 50% of the combined voting power entitled to vote generally in the election of directors of the reorganized, merged or consolidated company's then outstanding voting securities, or (ii) the sale of all or substantially all of the assets of the Company or (iii) the liquidation of the Compan y or its Parent , or (iii) a change in the composition of the Board of Directors such that the present members do not constitute a majority of the Board of Directors.
Section 280G or 409. In the event Consultant is considered a "specified employee" as defined in Internal Revenue Code ("Code") Section 409(A)(2)(B)(i), or in the event that any payment, benefit or compensation (within the meaning of Sections 280G(b)(2) or 409A of the Code) to the Consultant or for its benefit is paid or payable or distributed or distributable pursuant to the terms of the this Agreement or otherwise in connection with, or arising out of, its engagement by the Company or a change in ownership or effective control of the Company or a substantial portion of its assets (a Payment or Payments), would be subject to excise or additional tax or interest imposed by Code section 4999 or required under Code section 409A(b)(1) and/or any interest, tax or penalties are incurred by the Consultant with respect to such excise or additional t ax (such excise or additional tax,
together with any such interest and penalties, are hereinafter collectively referred to as the Excise Tax), then either (i) the Consultant shall promptly receive an additional payment (a Gross-Up Payment) in an amount such that after payment by the Consultant of all taxes (including any interest or penalties, other than interest and penalties imposed by reason of the Consultants failure to file timely a tax return or pay taxes shown due on its return, imposed with respect to such taxes and the Excise Tax), including any Excise Tax imposed upon the Gross-Up Payment, the Consultant retains an amount of the Gross-Up Payment equal to the Excise Tax imposes upon the Payments, or (ii) solely at the Company's election, any lump sum payment due to Consultant as a result of the provisions of Section 6.1, 6.2.2 or 6.2.3, shall be paid to Consultant 6 months after th e date such payment is otherwise due, together with interest at the rate of 8% per annum on such lump sum amount.
Confidentiality. Consultant shall (a) not disclose or reveal any confidential information (as herein defined) to any person other than those who are actively and directly participating in the services rendered by Consultant under this Agreement and (b) not use any confidential information regarding the Company for any purposes other than in connection with the services to be rendered by Consultant hereunder, and (c) take all steps as are normally used by Consultant in protecting confidential information to assure adherence to the terms of this Agreement. In the event that Consultant is requested pursuant to, or required by, applicable law or regulation or by legal process to disclose any confidential information regarding the Company, Consultant agrees that it will provide the Company with prompt notice of such request(s) to enable the Company to seek an appropriate protective or der and/or waive compliance by Consultant with the provisions of this Section. "Confidential Information" means all information about the Company, in any form, however and whenever acquired, that is not generally known to business competitors or the general public, and which is treated as confidential by the Company, including, without limitation: price lists, customer lists, vendor or supplier lists, procedures, improvements, modifications, enhancements, concepts and ideas, business plans and proposals, business methods, technical plans and proposals, research and development, know-how, budgets and projections, sales techniques, market studies, competitive analyses, accounts receivable or payable, billing methods and other non-public financial information, information regarding the skills and compensation of employees, technical memoranda, reports, designs and specifications, product and user manuals, software (whether or not reduced to writing and whether or not protectable by p atent or copyright registration), in both object code and source code, engineering, hardware configuration information, new product and service developments, and other information, data and documents now existing or later acquired, regardless of whether any of such information, data or documents qualify as "trade secrets" under applicable Federal or state law. Notwithstanding the foregoing, confidential information does not include information which is generally known in the trade or industry, or which is not gained as a result of a breach of a duty to maintain the secrecy of the Company's confidential information. The phrase generally known shall mean readily accessible to the public in a written publication.
PIGGYBACK REGISTRATION RIGHTS
If the Parent Company (or any successor entity into or with which the Company may have been merged, consolidated or otherwise combined) proposes to register any of its capital stock under the securities laws on behalf of any shareholder, and the registration form to be used may be used for the registration of Consultant's shares, the Company shall give prompt written notice to Consultant, by registered or certified mail, at least twenty (20) days prior to the filing of each such registration statement, of its intention to effect such a registration and, at Consultant's election, shall include in such registration the Consultant's shares of Company common stock, at the Companys cost and expense and at no cost, expense or other liability to Consultant, except for the fees of any separate counsel retained by Consultant, provided that if su ch registration involves an underwritten public offering, Consultant must sell the shares to the underwriters selected by the Company on the same terms and conditions as applicable to other shareholders and must execute all documents reasonably required by the underwriter in connection therewith.
Notwithstanding anything to the contrary contained in Section 8.1, if in the reasonable opinion of Management it is necessary to limit the number of shares of capital stock to be included in an offering to ensure that the securities can be marketed (i) at a price reasonably related to their then current market value and (ii) without otherwise materially adversely affecting the entire offering, Consultant agrees to participation with other shareholders in such registration pro rata based upon their respective total ownership of shares of capital stock of the Company.
Indemnification. To the fullest extent permitted by law, the Company shall promptly indemnify Consultant for all amounts (including, without limitation, judgments, fines, settlement payments, losses, damages, costs and expenses (including reasonable attorneys fees)) incurred or paid by Consultant in connection with any action, proceeding, suit or investigation arising out of or relating to the performance by Consultant of its services pursuant to this Agreement. This indemnification shall also apply to Consultant's prior activities as an officer and director of the Company. The Company shall use its best efforts to include Consultant as an insured under any insurance policy covering its officers, directors and employees.
Notice. Any notice, request or demand given pursuant to this Agreement shall be in writing and either hand delivered, or sent by certified or registered U.S. mail, return receipt requested. Notice shall be deemed given upon receipt and delivered to the respective addresses set out below, or to such other address as a Party shall specify in the manner required by this Section, as follows:
If to COMPANY:
14911 Quorum Dr
Attn: Stuart Ehrlich, CEO
If to CONSULTANT:
135 Weston Rd
Weston Fl 33326
Assignment. Consultant may only assign any of its rights under this Agreement to an entity controlled by Consultant. The Agreement may not be assigned by the Company without Consultant's prior written consent.
Legal Fees. The Company shall pay Consultant's legal fees with respect to the formation and review of this Agreement, up to a maximum of $5,000.
Observation Rights. In consideration of the execution by Consultant of this Agreement, Consultant shall have the right to attend all meetings of the Board of Directors.
Governing Law/Prevailing Party. This Agreement shall be construed in accordance with and governed for all purposes by the laws of the State of Florida applicable to contracts executed and to be wholly performed within such state without giving effect to any choice of law or conflict of law rules or provisions (whether of the State of Florida or any other jurisdiction) that would cause the application of the laws of any other jurisdiction other than the State of Florida. This Agreement shall be subject to the exclusive jurisdiction of the courts of the State of Florida located in Broward County, Florida or the United States District Court for the Southern District of Florida. The parties to this Agreement agree that any breach of any term or condition of this Agreement shall be deemed to be a breach occurring in the State of Florida by virtue of a failure to perform an act r equired to be performed in the State of Florida and irrevocably and expressly agree to submit to the jurisdiction of such courts in the State of Florida for the purpose of resolving any disputes among the parties relating to this Agreement or the transactions contemplated hereby. The parties irrevocably waive, to the fullest extent permitted by law, any objection which they may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement, or any judgment entered by any court in respect hereof brought in Broward County, Florida, and further irrevocably waive any claim that any suit, action or proceeding brought in Broward County, Florida has been brought in an inconvenient forum. The prevailing party in any suit brought hereunder shall be entitled to reimbursement for legal fees and costs incurred in connection with such suit (and appeal).
Entire Agreement. This Agreement contains the entire agreement of the Parties and supersedes all prior agreements, contracts and understandings, whether written or otherwise,
between the Parties relating to the subject matter hereof and may not be modified except by an amendment signed by the Parties.
Termination. This agreement is irrevocable and under no circumstance can be canceled by the company for any reason what so ever.
Severability. If any provision of this Agreement shall be determined by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated. If any provisions shall be determined by a court of competent jurisdiction to be unenforceable because excessively broad or vague as to duration, activity or subject, it shall be construed by limiting, reducing or defining it, so as to be enforceable.
Waiver. Neither the failure nor delay on the part of either Party to exercise any right, remedy, power or privilege under this Agreement shall operate as a waiver hereof. No waiver shall be effective unless it is in writing and is signed by the Party asserted to have granted such waiver.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date and year set forth on the first page of this
ATOMIC GUPPY INC.
/s/ Stuart Ehrlich
Stuart Ehrlich President, CEO / Director
Date: August 1, 2009
ITELLA, INC / CONSULTANT
/s/ Salvatore Nasca, Jr.
Salvatore Nasca, Jr., President-CEO
Date: August 1, 2009