Exhibit
10.1
CONSULTING AGREEMENT
THIS AGREEMENT is made as of October
23, 2008, by and between Who’s Your Daddy, Incorporated, a
Nevada corporation having an address at 5840 El Camino Real, Suite
108, Carlsbad California 92008 (the "Company"), ticker symbol WYDI
and Net Vertex New York Inc., a New York company, having an address
at 16 West 32 nd
Street, Suite 707, New York, NY 10001 (the "Consultant").
RECITALS:
WHEREAS, the Company requires services to
promote its brand and market its products;
WHEREAS, the Consultant has provided
international product distribution and business development
services for a number of companies;
WHEREAS, the Company recognizes the
substantial experience and knowledge of the Consultant in matters
relating to international business contacts;
WHEREAS, the Company further recognizes that
it is in the best interests of the Company to engage the consulting
services of the Consultant; and
WHEREAS, the Company desires to retain the
services of the Consultant, and the Consultant desires to render
such services to the Company upon the terms set forth in this
Agreement.
NOW, THEREFORE, in consideration of the
mutual promises and covenants set forth below, and other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
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Recitals. The Recitals to
this Agreement are hereby incorporated into this Agreement as
though fully restated herein.
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Engagement . The Company hereby
engages the Consultant, and the Consultant accepts engagement by
the Company, upon the terms and conditions set forth in this
Agreement.
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3.
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Term . The term of this
Agreement shall begin on the date hereof and shall continue until
October 23, 2009 subject to the following provisions:
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(a) The Consultant can at its sole discretion
elect to withdraw from the Agreement subject to a 10 day written
notice to the Company should the Consultant deem the Company being
unresponsive or uncooperative. Company would still be liable to the
Consultant for any “Success Fees,” as described in
Section 4; generated directly or indirectly by the Consultants
efforts and or introductions.
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(b) The Company can at its discretion
terminate the Agreement subject to a 10 day written notice at the
conclusion of the “Initial Period,” defined as three
months, if the Consultant’s efforts have not resulted in
tangible progress by the Consultants on the Company’s behalf.
Tangible progress being meetings scheduled with Japanese, European
or US direct or indirect contacts; “Introduced Parties”
of the Consultant regarding active talks or negotiations pertaining
to the “Introduced Parties” direct or in-direct
participation in any joint venture, strategic alliance, etc. with
the Company. The Company will still be liable for any and all
“Success Fees” generated by directly or indirectly by
the Consultant’s efforts for the duration of the Agreement
between the Parties.
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4.
Consulting Services Compensation .
(a) The
Company shall pay to Consultant or its designees as compensation
for its services under this Agreement:
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As compensation for its services, the
Consultant shall receive 2,000,000 shares of common stock of the
Company. Company agrees to issue such shares upon the
execution of this Agreement and Company and Consultant agree to
have said shares be held in an independent third party escrow
account of mutual agreement subject to the following earn out or
claw back provision: 250,000 shares shall be fully
earned and released upon completing a Business Lending Credit Line,
loan, or SBA Program, with no personal guaranty requirements, which
the Consultant secures for the Company for a minimum of $250,000
US, for a minimum period of one year with an annual interest rate
in the range of US Prime Rate plus 3 Points. An
additional 250,000 shares shall be earned and released upon the
accepting of a loan or Credit Line, with no personal guaranty
requirements, for a minimum of $250,000 US, which the Consultant
secures on behalf of the Company from a Tokyo financial institution
for a minimum period of one year with a capability to extend, at an
annual interest rate range of Prime Rate in Japan plus 3 Points.
Should the Company decide not to accept funds made available by
either loan approval within the above parameters then the shares
that would have been earned will be deemed earned regardless of the
Company accepting the funds. The remaining 1,500,000 shares shall
be earned and released upon the Company accepting any form of
Commitment Letters for $2,500,000 from parties introduced by
Consultant (the “Introduced Parties”) for
joint-venture, distribution, business development, or strategic
business relationships. However, the Company is under no obligation
to accept any such Commitment Letters. In addition if the Company
cancels this Agreement then 500,000 of the up-front shares shall be
deemed earned. Should the Company accept a Commitment Letter for
less than $2,500,000 from an Introduced Party, then Consultant
shall earn a pro rata share of the remaining 1,500,000 shares,
equivalent to the ratio between the amount accepted and $2,500,000.
Additional fees for further consulting services, the “Success
Fees”, shall be paid to the Consultant for any and all
Introduced Parties that directly or indirectly result in any form
of direct or indirect joint venture, distribution, business
development, or strategic business relationships,
etc. The Success Fee shall be equal to ten percent (10%)
of any amounts received by the Company from an Introduced Party ,
plus 100,000 common shares of the Company for each $1,000,000
received from an Introduced Party, or the equivalent on a pro rata
basis. Notwithstanding the foregoing, to the extent the Consultant
is required to have a securities license in order to lawfully be
paid any such Success Fee, the fee will not be payable to
Consultant. The Company shall be under no obligation to accept any
transaction or relationship arranged by Consultant, except as
described in 4(a)(i) above.
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The Consultant shall be responsible for
arranging independent legal counsel to act as an escrow type agent
for any business relationships the Company may enter with Third
Parties introduced to the Company directly or indirectly by the
Consultant subject to the Company approving the Consultants
selection, but which cannot be unreasonably withheld. Company
further agrees that the Consultants and Company’s signatures
shall be required for approval for the release of any and all
monies, stock and chattel to be released out of said escrow type
accounts and that Consultants fees shall be distributed directly to
the account or accounts of Consultant’s choosing from the
escrow type account(s). Should the Company decide not to accept
funds deposited in escrow type account from the business
development, distribution, strategic partners, joint venture or any
other Introduced Party, after approving the terms of such
arrangement, then all appropriate fees and compen
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