Exhibit 10.3
CONSULTING SERVICES
AGREEMENT
THIS CONSULTING AGREEMENT (the
“Agreement”), is made and entered into as of this 1
st 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
Consultant’s 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
ARTICLE I
APPOINTMENT
1.1
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.
1.2
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 workman’s compensation
insurance, disability or unemployment insurance benefits or any
other employee benefits offered by the Company to its
employees.
ARTICLE II
CONDITIONS AND TERMS OF AGREEMENT
The Company shall at all times retain and
exercise full control over the operations of the Company’s
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.
ARTICLE III
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.
ARTICLE IV
PAYMENT
4.1
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 1 st 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 1
st 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.
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4.2
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.
ARTICLE V
BUSINESS EXPENSES; ADDITIONAL
BENEFITS
5.1
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.
5.2
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
Company’s quarterly Form 10-Qs or annual Form 10-K. This
benefit is owing and due over the life of the contract and any
renewals.
5.3
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.
5.4
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.
5.5
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.
5.6
Vehicle.
The Company shall provide
Consultant with a vehicle allowance of $1,000 monthly in addition
to reimbursement for insurance coverage.
5.7
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..
5.8
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.
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ARTICLE VI
TERM OF AGREEMENT
6.1
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.
6.2
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, epidem
