EXHIBIT 10.12 - BUSINESS DEVELOPMENT AGREEMENT (MOBILEPRO, INC.)
BUSINESS DEVELOPMENT AGREEMENT
THIS BUSINESS DEVELOPMENT AGREEMENT (the "AGREEMENT") is made and
entered into as of August 26, 2004 by and between WWAP, INC., a Delaware
corporation (the "COMPANY"), and MOBILEPRO, INC. a Delaware corporation
("Mobilepro").
RECITALS:
WHEREAS, the Company desires to engage Mobilepro, and Mobilepro desires
to be engaged by the Company, to provide certain business development services
in accordance with and subject to the terms and conditions of this Agreement.
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants and agreements herein contained, and for other valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
AGREEMENT:
ARTICLE 1.
ENGAGEMENT
1.1. ENGAGEMENT. The Company hereby engages Mobilepro, and Mobilepro
hereby accepts such engagement.
1.2. SERVICES. Upon the request of the Company, Mobilepro shall perform
the services set forth on Exhibit "A" hereto.
ARTICLE 2.
TERM OF ENGAGEMENT
2.1. TERM. The engagement of Mobilepro pursuant to the terms hereof
shall commence on the date hereof and shall continue for a period of eighteen
(18) months at which time this Agreement shall continue on a month-to-month
basis until terminated by either party by providing thirty (30) days prior
written notice to the other party (the "TERM").
2.2. INDEPENDENT CONSULTANT. The Company and Mobilepro acknowledge and
agree that Mobilepro is an independent contractor and that nothing in this
Agreement is intended to cause Mobilepro to be a fiduciary, agent, joint
venturer, legal representative, partner or servant of the Company for any
purpose whatsoever. Mobilepro agrees that the Company shall in no event assume
liability for or be deemed liable hereunder as a result of any contract,
agreement, understanding, debt or obligation entered into by Mobilepro on the
Company's behalf without the Company's prior written consent. Mobilepro shall be
solely responsible for and shall pay all taxes, assessments, and fees incident
to the performance of his obligations pursuant to this Agreement.
ARTICLE 3.
COMPENSATION OF CONSULTANT
3.1. COMPENSATION. As compensation for the services to be provided
hereunder (the "Compensation"), the Company shall pay Mobilepro a fee payable by
the issuance of a number of shares of common stock equal to 5.5% of the
Company's outstanding common stock (on a fully diluted basis after taking into
account all outstanding options, warrants and other securities convertible or
exchangeable into shares of capital stock of the Company, but excluding any
securities to be issued to Cornell Capital Partners on the date hereof pursuant
to the Securities Purchase Agreement and the Standby Equity Distribution
Agreement or related agreements. This fee shall be deemed fully earned as of the
Second Closing (as such term is defined in the Securities Purchase Agreement).
Notwithstanding the foregoing, Mobilepro acknowledges that it shall be obligated
to distribute 4.5% of the Company's outstanding common stock to its
shareholders.
ARTICLE 4.
MISCELLANEOUS
4.1. NOTICES. All notices hereunder, to be effective, shall be in
writing and shall be deemed delivered when delivered by hand, upon confirmation
of receipt by telecopy or when sent by first-class, certified mail, postage and
fees prepaid, as follows:
(a) for notices and communications to the Company
Active Point, Ltd.
Attention: Moshe Ofer, CEO
(b) for notices and communications to Mobilepro:
Mobilepro Corp.
6701 Democracy Boulevard
Suite 300
Bethesda, Maryland 20817
Attention: Jay Wright, President
Fax: (301) 315-9027
By notice complying with the foregoing provisions of this Section, each party
shall have the right to change the address for future notices and communications
to such party.
4.2. MODIFICATION. This Agreement constitutes the entire Agreement
between the parties hereto with regard to the subject matter hereof, superseding
all prior understandings and agreements, whether written or oral. This Agreement
may not be amended or revised except by a writing signed by both of the parties
hereto.
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4.3. ASSIGNMENT. This Agreement and all rights hereunder are personal
to Mobilepro and may not, unless otherwise specifically permitted herein, be
assigned by it. Notwithstanding anything else in this Agreement to the contrary,
the Company may assign this Agreement to and all rights hereunder shall inure to
the benefit of any person, firm or corporation succeeding to all or
substantially all of the business or assets of the Company whether by purchase,
merger or consolidation.
4.4. CAPTIONS. Captions herein have been inserted solely for
convenience of reference and in no way define, limit or describe the scope or
substance of any provision of this Agreement.
4.5. SEVERABILITY. The provisions of this Agreement are severable, and
the invalidity of any provision shall not affect the validity of any other
provision. In the event that any arbitrator or court of competent jurisdiction
shall determine that any provision of this Agreement or the application thereof
is unenforceable because of the duration or scope thereof, the parties hereto
agree that said arbitrator or court in making such determination shall have the
power to reduce the duration and scope of such provision to the extent necessary
to make it enforceable, and that the Agreement in its reduced form shall be
valid and enforceable to the full extent permitted by law.
4.6. GOVERNING LAW. This Agreement shall be construed under and
governed by the laws of the State of Maryland without regard to its principles
of conflicts of laws. The parties hereto agree that except as otherwise provided
in this Agreement, any claim or dispute arising under or in connection with this
Agreement shall be submitted for adjudication exclusively in courts of
Montgomery, County, Maryland, and each of the parties hereto expressly agrees to
be bound by such selection of jurisdiction and venue for purposes of such
adjudication.
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IN WITNESS WHEREOF, the parties hereto have caused this Business
Services Agreement to be executed by their representatives thereunto duly
authorized.
WWAP, INC.
By: /S/ MOSHE OFER
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Name: MOSHE OFER
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Title: PRESIDENT
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MOBILEPRO, INC.
By: /S/ KURT GORDON
-----------------------------------------
Name: KURT GORDON
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Title: CHIEF FINANCIAL OFFICER
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EXHIBIT "A"
DESCRIPTION OF SERVICES
1. The parties to this Agreement will look to jointly pursue select
opportunities in the areas of distributing interactive virtual sales
representatives to an array of potential clients and organizations.
2. Mobilepro may serve as a re-seller of the Company's products and
services in North America on a non-exclusive basis.
3. Mobilepro will seek to introduce the Company to Mobilepro's other
channel and alliance partners which may have interest in doing business
with ActivePoint.
4. Where appropriate, Mobilepro will support the Company's efforts to
assist in securing approvals for the Company's technology within
appropriate government and industry standards groups.
5. Mobilepro shall provide the Company with periodic updates of its
activities under this Agreement.
6. Mobilepro will assist with the conceptual development of the Company's
applications and market segmentation of its products.
7. Mobilepro will introduce the Company's products via all its relevant
channels to prospects and the general public.
8. Mobilepro will escort the Company in developing a business use for the
Company's patent in the on-line security market.
9. Mobilepro will provide the Company with such information as it may
require in connection with its filing of a registration statement and
its transition in becoming a publicly traded company.
10. Mobilepro will seek to introduce the Company's software solutions as a
test beta site on one of Mobilepro's ISP of Telco subsidiaries and will
provide market data based on their experience with the services.
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