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AGREEMENT FOR EDUCATIONAL SERVICES TO STARTUPS
This Agreement for Educational Services to Startups (“Agreement”) is executed at ________ on
this _____ day of _______________ and is applicable with effect from ______________
(“Effective Date”)
BETWEEN:
MOBME WIRELESS SOLUTIONS LIMITED, an unlisted public company incorporated under the
aegis of the Companies Act, 1956, having its registered office at 41/3197, Fourth Floor,
Bhageeratha Square, Near Town Hall, Kacherippady, Cochin – 682018 (hereinafter referred to
as “Service Provider” which expression shall, unless repugnant to the context or meaning
thereof, mean and include its successors and assigns) of the First Part;
AND
M/s _______________________________, a partnership firm / limited liability partnership
registered under the Indian Partnership Act, 1932 at present carrying on the business of [insert
main / current business of the partnership] and having its registered office at
_________________________________ represented herein by its Partner: Mr. / Ms.
_____________________, aged ___ yrs., son / wife / daughter of ______________________,
residing at _____________________ (hereinafter referred to as the “Startup”, which
expression shall, unless repugnant to the context or meaning thereof, mean and include its
successors and assigns) of the Second Part;
AND
Mr. / Ms. ____________ ____________________, aged _______ yrs., son / wife / daughter of
_____________________, residing at ____________________________ (hereinafter referred
to as a “Founder 1”, which expression shall, unless repugnant to the context or meaning
thereof, mean and include his/her successors and assigns) of the Third Part.
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AND
Mr. / Ms. ____________ ____________________, aged _______ yrs., son / wife / daughter of
_____________________, residing at ____________________________1 (hereinafter referred
to as a “Founder 2”, which expression shall, unless repugnant to the context or meaning
thereof, mean and include his/her successors and assigns) of the Fourth Part.
Founder 1 and Founder 2 shall hereinafter be collectively referred to as the “Founders” and
individually as the “Founder”. It is hereby clarified that the Founders are executing this
Agreement not only in their capacity as a Partner/promoter of the Startup, but in their
individual capacity as well.
The Service Provider, the Startup and each of the Founders are hereinafter individually referred
to as “Party” and collectively as “Parties”.
WHEREAS:
A. The Service Provider is inter alia engaged in the business of providing educational
services to technology start-ups aimed to help grow their business.
B. The Startup being a technology Startup desirous of availing the Services (as defined
hereinafter in Section 1.1 (s) of this Agreement) to help it develop a commercially viable
business involving [details of the proposed business to be described here] (“Business”)
has applied to the Service Provider to provide the same.
C. Having selected the Startup from a list of applicants interested in availing the Services,
the Service Provider has agreed to provide the Services to the Startup and accordingly,
the Parties have agreed to enter into this Agreement for recording the terms on which
the said Services will be provided and availed, the consideration payable for the same
and other terms and conditions incidental and ancillary to the said purpose.
1 Insertnames and details of all thePartners and have all of them sign the Agreement.
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NOW THEREFORE, for and in consideration of the foregoing, and the representations,
warranties, and conditions set forth below, the Parties hereto, intending to be legally bound,
hereby agree as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Definition
In this Agreement, including in the Recitals, and unless the context requires otherwise, the
following words and expressions shall have the following meanings:
(a) “Agreement” means this Agreement together with its Schedules, as the same may be
amended, modified and/or supplemented from time to time in writing in accordance
with the terms and conditions hereof;
(b) “Authorized Representative” means any person duly authorized as such by each
Party for any purpose in connection with this Agreement;
(c) “Business” shall have the meaning ascribed to it in Recital B of this Agreement;
(d) “Company” shall mean the company incorporated by the Startup pursuant to Section
4.1 of this Agreement. For the avoidance of doubt, all references to the “Startup” in
this Agreement shall also mean and include a reference to the Company after the
Company signs a deed of adherence in accordance with Section 4.2 below;
(e) “Cost to Company” refers to the total expenses incurred by a company on a given
employee in a year;
(f) “Founders” shall have the meaning as defined in the Description of Parties. For the
avoidance of doubt, all references to a “Founder” or “Founders” in this Agreement
shall mean and include a reference to the said individual (i) as a Partner of the Startup,
and (ii) as a shareholder, promoter, director and/or employee of the Company after
the Company has been incorporated and signs a deed of adherence in accordance
with Section 4.2 below.
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(g) “Fully Diluted Basis” means the calculation of the value of the Startup on the
assumption that all outstanding convertible securities, stock options and outstanding
commitments by the Startup to issue equity shares at a future date, whether or not
due to the occurrence of an event or otherwise, have been so converted, exercised or
exchanged (or issued, as the case may be) and Fully Diluted shall be interpreted
accordingly;
(h) “Gross Contract Revenue” means the total sale price and/or license fees and/or
consideration paid and/or to be payable to the Startup by its Potential Customers;
(i) “Government” shall include the President of India, the Government of India, the
Governor and the Government of any State in India, any Ministry or Department of
the same and any local or other authority exercising powers conferred by Law;
(j) “Key Employees” means the Founders and other promoters and employees of the
Startup as set out in Schedule B hereto and shall include those who join the Startup
after the execution of this Agreement and is identifiable as a Key Employee in the
Service Provider’s sole opinion;
(k) “Law” includes all statutes, enactments, Acts of Legislature or Parliament, laws,
ordinances, rules, bye-laws, regulations, notifications, guidelines, policies, directions,
directives and orders of any Government, Statutory Authority, Tribunal, Board, Court
or recognized Stock Exchange and if applicable, international treaties and regulations
as amended from time to time;
(l) “Losses” includes all losses, claims, costs, and damages (whether direct, indirect,
general, special, absolute, accrued, conditional or otherwise and whether or not
resulting from third party claims), including interests and penalties with respect
thereto and out-of-pocket expenses, including reasonable attorneys' and accountants'
fees and disbursements;
(m) “Monitoring Committee” shall have the meaning ascribed to it in Section 5;
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(n) “Potential Acquirer” shall mean any person/entity introduced to the Startup by the
Service Provider for a potential acquisition in terms of Section 3.1 (d) or Section 3.7
and shall also include Potential Customers, Potential Employer and Potential Investors.
(o) “Potential Customers” are those customers introduced / referred by the Service
Provider to the Startup who may be interested to buy and avail Startup’s products and
services;
(p) “Potential Employer” means an employer referred to in Section 3.6 to whom a
Founder of the Startup is introduced by the Service Provider;
(q) “Potential Investors” are those investors and/or financiers introduced / referred by
the Service Providers to the Startup who may be interested to invest in the Startup
and/or provide financial assistance to the Startup.;
(r) “Pre-money Valuation” means the value of the Startup arrived at immediately prior
to the infusion of any investment into the Startup by Potential Investors by calculating
the same on a Fully Diluted Basis;
(s) “Services” means the educational services being provided/to be provided by the
Service Provider to the Startup and/or the Founders (or any of them) on a best efforts
basis as set forth in Section 2 hereunder and more fully set out in Schedule A of this
Agreement;
(t) “Shareholders Agreement” shall refer to the shareholders agreement to be entered
into by all the shareholders of the Startup with the Service Provider (or its nominees).
2 SCOPE OF SERVICES
2.1 For the due consideration payable by the Startup as set forth in Section 3 of this Agreement,
the Service Provider shall provide on a best efforts basis the services for the period of the
Agreement as set out in Section 6.1 to (i) help the Startup grow and develop its Business
and (ii) to help the Founders (in their individual capacity) get employment or get ‘acqui-
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hired’, as more fully set out in Schedule A of this Agreement (hereinafter collectively
referred to as the “Services”).
2.2 If the Startup has been availing any services from the Service Provider prior to the Effective
Date of this Agreement and is executing this Agreement to avail the Services under this
Agreement, then the following conditions shall also apply:
(a) There shall not be any refund of any payments, if any, made by the Startup prior
to the Effective Date; and
(b) All agreements, if any, entered into between the Startup and the Service
Provider shall stand terminated and inoperative as of the Effective Date of this
Agreement.
3 CONSIDERATION
A. Consideration payable by the Startup for Services rendered to the Startup
3.1 As consideration for the Services provided by the Service Provider as per this Agreement,
the Startup shall pay and provide the Service Provider with the following:
a) If the Startup generates revenues from Potential Customers, the Startup agrees
to pay to the Service Provider, a payment of Five percent (5%) of the Gross
Contract Revenue generated from each Potential Customer for the first Three (3)
years from the date of first sale and/or license of products and/or rendering of
services to the Potential Customers. Such amounts shall be payable by the
Startup to the Service Provider within Twenty (20) days from the date of receipt
of any amounts / consideration whatsoever by the Startup (or its nominees)
from any Potential Customer.
b) (i) In the event of any investment whatsoever by any Potential Investor into
the Company incorporated by the Startup at any time after the Effective Date
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hereof, the Service Provider shall have the right, at their sole and absolute
discretion, to co-invest along with such Potential Investors up to a maximum of
Thirty percent (30%) of the total investment proposed to be raised by the Startup
from such Potential Investors at the given point of time till the Startup reaches a
Pre-money Valuation of INR Sixty Crores (INR 60,00,00,000/-) or US Dollars Ten
million (US$ 10,000,000). In the event of such co-investment into the Company
by the Service Provider, the Startup shall ensure that the Service Provider is
provided with rights similar to those provided to the Potential Investors
proportionate to the Service Provider’s shareholding in the Company including
but not limited to the rights set out in Section 4.1 hereunder.
(ii) The price at which the Service Provider shall be allotted and issued equity
shares (or such other securities as are proposed to be allotted and issued to the
other Potential Investors for their investment) for the investment by the Service
Provider shall be calculated based on a discount of Thirty percent (30%) of the
Pre-money Valuation, i.e. the price at which the Service Provider shall be issued
and allotted equity shares (or such other securities) shall be at a Thirty percent
(30%) discount to the price per share / other security at which such shares /
other securities are to be allotted and issued to the Potential Investors. The
Service Provider shall have the absolute right to transfer / assign / novate in
whole (or in part), and in one or multiple stages, their right to investment in the
Company and/or the shares / other securities that may be held by them in the
Company from time to time to any other persons or entities as they deem
appropriate and the Startup shall do all the necessary corporate actions to
facilitate and perfect the issue / transfer of such shares / other securities to such
nominee(s) of the Service Provider.
(iii) Where the Startup incorporates a new entity outside India for similar
product/ideas or correlated activities of the Business or to raise funding for the
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development of products or its Business as contemplated under this Agreement,
the Service Provider shall at their discretion have the right to co-invest, as
mentioned above, as they deem fit in such entities outside India by themselves /
through their nominee(s). The terms and conditions in relation to the Service
Provider’s (and/or their nominees’) shareholding in the Startup shall be as set
forth in a Shareholders Agreement as contemplated in Section 4.1 hereunder.
(iv) The Service Providers will have this right to co-invest at a discount, for
only one (1) round of investment proposed to be raised by the Startup. The
Service Providers will have the right to invest in future rounds of investment
proposed to be raised by the Startup in proportion to its shareholding should it
desire to do so, but without a discount.
c) If the Startup receives any funding in any manner, by way of equity, debt,
convertible debt, grants, financial discounts, etc., from any such Potential
Investors introduced by the Service Providers, the Startup agrees to pay the
Service Provider an arranger’s fee of Two-and-a-half percent (2.5%) of the total
funding received by the Startup from such Potential Investors. Such amounts
shall be payable by the Startup to the Service Provider within Twenty (20) days
from the date of receipt of any such funds / financial benefits whatsoever by the
Startup from the Potential Investor.
d) In the event that the Business, assets, Key Employees and/or the intellectual
property rights of the Startup are wholly / partly sold, transferred or surrendered
to any Potential Acquirer and/or the Key Employees of the Company take up
employment / engagement with any Potential Acquirer and the Startup receives
any consideration whatsoever in cash / kind as mentioned above in connection
with such sale, transfer or surrender and/or the mass resignation and/or
movement of the Key Employees to employment / engagement with another
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Potential Acquirer, the Startup agrees to pay the Service Provider Twenty
percent (20%) of the aggregate value of all consideration whatsoever (including
but not limited to cash, securities, options any other properties and assets
whatsoever) received (or to be received over a period of time) by the Startup.
Such amounts shall be payable by the Startup to the Service Provider within
Twenty (20) days from the date of receipt of any such funds / financial benefits /
consideration whatsoever in kind by the Startup from the Potential Acquirer.
3.2 If and when the Startup reaches/crosses a valuation of INR Sixty Crores (INR
60,00,00,000/-) or US Dollars Ten million (US$ 10,000,000), and it raises further
investment, the Service Provider shall also have the right to invest in the Startup in
proportion to its shareholding at the time of such investment should it desire to do so.
3.3 The Startup undertakes to keep the Service Provider informed in writing every time it
proposes to bring in further investment or funds in the Startup either from the existing
shareholders or from third party investors at any time after the Effective Date at least
Fifteen (15) days before it enters into negotiations to raise such investments / funds. The
Startup shall also notify the Service Provider within Ten (10) days of entering into any sale
/ supply / license / services agreement with any Potential Customers.
3.4 The Service Provider (or their affiliates or nominees) shall also be entitled at their
discretion to charge the Startup, fees and expenses on a monthly basis (or such other
periodic basis as decided by the Service Provider) for arranging and organizing training,
mentoring and other educational activities conducted for the benefit of the Startup. All
such fees shall be notified to the Startup in writing and amounts as invoiced by the Service
Provider (or their affiliates or nominees) towards the said fees shall be payable by the
Startup within Ten (10) days of the date of the relevant invoice / bill, time being of the
essence.
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3.5 For the avoidance of doubt, it is hereby agreed and confirmed by the Startup that the
Services offered by the Service Provider under this Agreement and introduction of
Potential Customers and Potential Investors to the Startup under this Agreement,
irrespective of the contingency of termination of this Agreement during its term as set out
in Section 6.1 constitute adequate consideration for the revenue sharing to be paid as per
Section 3.1(a), the discounted price at which shares / other securities are to be allotted
and issued to the Service Provider by the Startup as per Section 3.1(b), the arranger’s fee
to be paid as per Section 3.1(c), the amounts to be paid as per Section 3.1(d) and the fees
and expenses to be paid / reimbursed in accordance with Section 3.4. The Startup agrees
to make prompt payment of the amounts mentioned in Section 3.1 (a), 3.1(c), 3.1(d) and
Section 3.4 above, time being of the essence.
B. Consideration for Services rendered to the Founders in their individual capacity
3.6 Job Referral
The Service Provider may from time to time introduce a Founder to potential employers
(“Potential Employer”). If a Founder receives and accepts an offer of employment from
a Potential Employer, the Founder agrees to pay the Service Provider an amount equal
to Ten percent (10%) of the Founder’s annual salary on a Cost to Company basis for
his/her first year of employment within Fifteen (15) days from the date of first salary
disbursal by such Potential Employer, time being of the essence. For the avoidance of
doubt, it is hereby agreed and confirmed by the Founders that the services provided by
the Service Provider in introducing the Founders (or any of them) to the Potential
Employer thereby assisting the Founder in obtaining employment constitutes adequate
consideration for the amounts payable by the Founder in accordance with this Section
3.6.
3.7 Acquisition of the Startup or Acquihire of Key Employees
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In consideration of the Services provided by the Service Provider to the Founders and
the Startup in accordance with this Agreement, each of the Founders agree to pay the
Service Provider Twenty percent (20%) of the aggregate value of all cash bonuses
(including sign-on bonuses and retention / staggered bonuses) and all other
consideration whatsoever (including but not limited to cash, securities, options any
other properties and assets whatsoever) received (or to be received over a period of
time) by the Founder in the following events:
a) If the Startup is acquired wholly / partly by a Potential Acquirer and the Founder
receives any such consideration as mentioned above paid / payable in cash /
kind for either (a) purchase of shares and other securities or the stake held by
the Founder in the Startup and/or (b) otherwise in connection with /
consideration for such acquisition; or
b) If the business, assets, Key Employees and/or the intellectual property rights of
the Startup are wholly / partly sold, transferred or surrendered to any Potential
Acquirer and/or the Key Employees of the Startup take up employment /
engagement with any one other person / entity and the Founder receives any
consideration whatsoever in cash / kind as mentioned above in connection such
sale, transfer or surrender and/or the mass resignation and/or movement of the
Key Employees to employment / engagement with a Potential Acquirer.
3.8 It is acknowledged and confirmed by the Founders that the Services provided by the
Service Provider as per this Agreement, which will benefit the Founders and Key
Employees as well, constitutes adequate consideration for the amounts payable by the
Founders to the Service Provider in terms of Section 3.7 above. The amounts referred to
in Section 3.7 above shall be payable by the Founder within Fifteen (15) days of the
Startup / Founder agreeing to any of the events referred to in Section 3.7 above or the
occurrence of the said events, whichever is earlier.
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3.9 For the avoidance of doubt, it is clarified that Section 3.6 and Section 3.7 are intended to
be mutually exclusive. Therefore, if any Founder makes any payment to the Service
Provider under Section 3.7 on account of taking up employment under any of the
scenarios prescribed in Section 3.7, then in order to avoid any double payment by the
said Founder, he/she will be excluded from making any payment under Section 3.6.
4 COVENANTS
A. Covenants of the Startup
4.1 The Startup undertakes to incorporate itself as a Company under the Companies Act,
2013 and transfer the Business and all assets of the Startup to the Company. In the
event of any proposed investment by the Service Provider pursuant to Section 3.1
above, the Parties agree to enter into a Shareholders Agreement along with the
Potential Investors and all other shareholders of the Startup prior to such investment by
the Service Provider in the Startup. The aforesaid Shareholders Agreement, which shall
be congruous with this Agreement and the interests of the Service Provider and in a
form and manner acceptable to the Service Provider, shall mandatorily incorporate the
following:
a) Tag along rights: In the event of sale of shares in the Startup by the shareholders to
third parties, and if so requested by the Service Provider/ its nominee(s), the selling
parties shall ensure that the acquiring third parties also acquire the shares held by the
Service Provider/ its nominee(s) on the same proportional conditions as the selling
parties as a pre-condition to any such sale by the shareholders. The Parties agree that
the valuation of shares regarding the aforesaid transaction shall not be prejudicial and
detrimental to the reasonable commercial interests of the Service Provider. In the
event of such proposed sale of shares in the Startup by the shareholders to third
parties, if the Service Provider is of the opinion that the price at which shares are
being offered to the third party is lower than the fair value of the shares, the Service
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Provider will have the right of first refusal to purchase the shares being offered to the
third party at the price at which the shares are being offered to the third party.
b) Drag along rights: In the event of collective exit to an independent third party, the
majority shareholder may require the other shareholders to mandatorily sell their
shares to the said independent third party. The sale of shares shall be on the same
proportional conditions for each shareholder as all other shareholders. The Parties
agree that the valuation of shares regarding the aforesaid transaction shall not be
prejudicial and detrimental to the reasonable commercial interests of the Service
Provider.
c) Anti-dilution clause: The shareholding percentage held by the Service Provider in the
Startup shall not be diluted till the Startup, as valued by an independent auditor
satisfactory to the Service Provider, reaches a Pre-money Valuation of US Dollars that
is higher than the valuation at which the Service Provider has invested in the Startup,
up to a maximum Pre-money Valuation of USD 10 Million Dollars, except unless the
Service Provider decides not to invest along with the Potential Investors in terms of
Section 3.1 above.
4.2 The Startup shall, upon incorporation of the Company and within a period of Fifteen
(15) days from the date of incorporation of the Company, ensure that the Company
completes the following:- (a) signs a deed of adherence to this Agreement in a form
and manner satisfactory to the Service Provider agreeing to abide by all of the
confirmations and obligations of the Startup and Company as mentioned in this
Agreement; and (b) furnishes to the Service Provider a certified true copy of
resolutions passed by the Board of Directors and the shareholders of the Startup /
Company ratifying the consideration payable / to be provided as mentioned in Section
3.1 and 3.4 as being reasonable and appropriate consideration for the Services
provided by the Service Provider.
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4.3 The Startup shall not transfer, assign, license, sub license or enter into any
arrangement whatsoever and shall not deal with their interests or rights in the Services
with any person/s or institutions in any manner whatsoever without the previous
written permission and consent of the Service Provider. If, in case any such permission
is once granted, the same shall be by a separate agreement as per the terms decided
by the Service Provider.
4.4 The Startup shall inform Service Provider in writing of any proposed change in the
corporate structure of the Startup and/or any proposed investment in the Startup at
least Thirty (30) days prior to such proposed change / investment.
4.5 If the Service Provider has invested in the Company and as long as the Service Provider
holds shares in the Company, the Startup shall not, without the approval of the Service
Provider, undertake or permit the following the actions:
(a) undertake or permit any merger, consolidation, scheme of arrangement or
compromise with its creditors or shareholders or effect any scheme of
amalgamation or reconstitution.;
(b) revalue its assets any time during the term of this Agreement; and
(c) transfer, assign, dispose of, pledge, charge, hypothecate, mortgage or create any
lien or in any way encumber any of its undertakings, properties and assets or
Business in favour of any third party.
(d) change the nature or scope of the Business and of any event or condition, which
might materially and adversely affect or delay growth or development of the
Business.
4.6 The Startup shall promptly notify the Service Provider in the following circumstances:
a) on the happening of any event which will have or likely to have an adverse effect on
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the Business; and b) force majeure circumstances and/or circumstances beyond the
reasonable control of the Startup against which the Startup may or may not have
insured its properties.
4.7 The Startup shall comply with all the Laws for the time being in force that would be
applicable to the Startup and shall comply with any regulations therein including but
not limited to filing of any forms, acquiring any licenses, submitting any returns with
any statutory authority or any Government.
4.8 The Startup undertakes to provide a monthly general update on its Business and
financial affairs on or before the Tenth (10th) business day of every month.
4.9 The Startup also undertakes to submit itself to the annual audit of the Service Provider,
which shall be carried out at the sole discretion of the Service Provider. The Startup,
upon written request of the Service Provider, undertakes to provide all the pertinent
documents, records and information as required by the Service Provider during the
tenure of this Agreement.
4.10 All indirect taxes, if any, payable in connection with the services provided by the
Service Provider to the Startup and/or the consideration payable or to be provided by
the Startup for the same shall be borne solely by the Startup and shall be paid in
addition to the amounts and other consideration referred to in Section 3.1 and 3.4
above.
B. Covenants of the Founders in their individual capacity
4.11 Each of the Founders covenant in their individual capacity as follows:
(a) The Founder shall keep the Service Provider informed of all developments
pertaining to securing an employment with any Potential Employer. The Founder
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shall also notify the Service Provider in writing within Seven (7) days of receiving
an offer of employment from a Potential Employer. Such notice shall also
enclose a copy of the offer letter.
(b) The Founder shall duly inform the Service Provider in writing within Seven (7)
days of the Startup / Founder entering into any discussions with any person for a
sale, transfer or surrender in whole / in part of the Startup or its business or the
Key Employees or any of the assets of the Startup including its intellectual
property rights.
(c) The Founder shall duly and promptly inform the Service Provider in writing
within two (2) days of any change in employment, engagement or time spent on
the business of the Startup by any of the Key Employees including the Founder.
5 MONITORING COMMITTEE
5.1 The Service Provider shall be entitled to appoint a Monitoring Committee comprising
of the representatives of the Service Provider and other experts for evaluating the
performance of the Startup and its Business.
5.2 The Monitoring Committee shall continuously monitor the Business and activities of
the Startup.
5.3 The Startup shall permit the Monitoring Committee or any Authorized Representative
of the Service Provider to carry out technical and financial inspections during the term
of this Agreement and to inspect all records, documents, registers and accounts of the
Startup. Any such representative of the Monitoring Committee or Service Provider
shall have free access at all reasonable times to any part of the Startup's assets and to
its records, registers and accounts and to all schedules, costs, estimates, plans and
specifications relating to the Business and shall receive full co-operation and assistance
from the employees of the Startup.
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6 TERM AND TERMINATION
6.1 This Agreement is valid from the Effective Date and shall be in force for a period of Five
(5) years from the date of first product launch by the Startup.
6.2 This Agreement can be renewed or amended on such terms as may be mutually agreed
to by the Parties.
6.3 The Startup shall not be entitled to terminate this Agreement during the term of the
Agreement as set out in Section 6.1. The Service Provider shall have the right to
terminate this Agreement during its term as set out in Section 6.1and/or discontinue
provision of the Services, after giving a Fifteen (15) days’ notice, in the following
circumstances: -
(a) Where the Startup violates any of the terms and conditions of this Agreement or
the Shareholders Agreement executed in pursuance of this Agreement; or
(b) Where the Startup violates any representation and warranties mentioned
hereinabove and such other rules and regulations as may be framed by Service
Provider, from time to time; or
(c) Commits any fraud, theft or any other offence punishable under law; or
(d) Unsatisfactory performance of the Startup as per the determination of
Monitoring Committee; or
(e) Such other circumstances as may deem fit in the interest of the Parties to this
Agreement.
6.4 For the avoidance of doubt, it is agreed that any termination of this Agreement shall
not affect any shares and securities subscribed to / held by the Service Provider (and
their nominees) and their rights as shareholders in the Startup; and the Service
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Provider (and their nominees) will be entitled to retain such shares and securities held
by them in the Startup. It is further clarified and agreed that the termination of this
Agreement by the Service Provider prior to expiry of the term as set out in Section 6.1,
shall not, in any manner, adversely affect the rights of the Service Provider under
Section 3. All other provisions of this Agreement (including the indemnity obligations
of the Startup) as are necessary for the Service Provider to receive the full economic
consideration and benefits as referred to in Section 3 shall survive termination of the
Agreement and continue to be in force between the Parties.
6.5 If the Startup and/or any of the Founders violate / fail to comply with any of the clauses
mentioned in this Agreement as applicable to them, the Service Provider will have
absolute discretion to take necessary actions including but not limited to initiating legal
action for specific performance, claiming damages or other remedies as available under
Law.
7 INDEMNIFICATION
The Startup and each of the Founders shall keep the Service Provider indemnified in the
event of Losses or damage suffered by the Service Provider owing to any fraud,
negligence or misrepresentation or any default in compliance with any of the terms of
this Agreement (as are applicable to them) on the part of the Startup and/or the Founders
as the case may be.
8 MISCELLANEOUS
8.1 Service of Notice
Service of a notice or any communication must be effected by one of the following
methods:
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(a) by hand to the relevant address as set out in Section 8.2 and shall be deemed
served upon delivery, if delivered during a business day or at the start of the next
business day, if delivered at any other time; or
(b) by prepaid first-class post/registered post/speed post to the relevant address set
out in Section 8.2 and shall be deemed served at the start of the Fourth (4th)
business day after the date of posting; or
(c) by electronic mail transmission in “portable document format” (“.pdf”) to the
relevant e-mail addresses set out in Section 8.2 and shall be deemed served on
dispatch, if dispatched during a business day or at the start of the next business
day, if dispatched at any other time, provided that in each case a receipt indicating
complete transmission of the notice is obtained by the sender.
8.2 Address for Service
MobME:
Name: __________________________________________
Designation: _____________________________________
Address: _________________________________________________________________
________________________________________________________________________.
Email: __________________________________________________
Startup:
Name: __________________________________________
Designation: _____________________________________
Address: _________________________________________________________________
________________________________________________________________________.
Email: __________________________________________________
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Founder 1:
Name: __________________________________________
Designation: _____________________________________
Address: _________________________________________________________________
________________________________________________________________________.
Email: __________________________________________________
Founder 2:
Name: __________________________________________
Designation: _____________________________________
Address: _________________________________________________________________
________________________________________________________________________.
Email: __________________________________________________
8.3 Applicable Law & Settlement of Disputes
This Agreement shall be construed, governed by, interpreted and applied in accordance
with the Laws of India. Any dispute arising out of or in connection with this Agreement,
including any question regarding its existence, validity or termination, shall be referred to
and finally resolved by arbitration under Arbitration and Conciliation Act, 1996 and shall be
conducted by the Indian Institute of Arbitration & Mediation (“IIAM”), in accordance with
their Arbitration Rules ("IIAM Arbitration Rules") for the time being in force. The Tribunal
21
shall consist of one arbitrator to be appointed by the Parties. In case the Parties fail to agree
upon the appointment of a sole arbitrator, the arbitration shall be conducted by a panel of
Three (3) arbitrators consisting of One (1) arbitrator appointed by the Service Provider, One
(1) arbitrator appointed jointly by the Startup and the Founders (or any one or more of
them as the case may be) and the third arbitrator, who shall be the Presiding Arbitrator,
appointed by the Administrator of IIAM. The award of the arbitrator(s) shall be final, binding
and conclusive on the Parties. The venue of the arbitration proceedings shall be at the IIAM
premises or any other neutral location in Cochin, India and the proceedings shall be
conducted in English. Subject to the above, the courts in Cochin, Kerala shall have
jurisdiction over all matters relating to this Agreement.
8.4 Entire agreement
This Agreement together with any agreement specifically executed pursuant to this
Agreement constitutes the whole and only agreement between the Parties relating to the
Services. This Agreement supersedes and extinguishes any prior drafts, agreements,
undertakings, representations, warranties and arrangements of any nature whatsoever,
whether or not in writing, relating thereto.
8.5 English Language
All notices or formal communications under or in connection with this Agreement shall be in
the English language.
8.6 Assignment
Unless specifically otherwise provided in this Agreement, neither Party shall have the right
to assign their respective rights hereunder or transfer their respective rights and
obligations, in whole or in part, to any third party. Provided however that the Service
22
Provider, may at its discretion, assign, transfer, novate and/or delegate any of its rights and
obligations to any third party.
8.7 Severability
If any provision of this Agreement is or becomes invalid, illegal or unenforceable under the
laws of any jurisdiction, then such provision shall (so far as it is invalid or unenforceable) be
given no effect and shall be deemed not to be included in this Agreement but without
invalidating any of the remaining provisions of this Agreement which shall not in any way be
affected or impaired. The Parties hereto shall then use all reasonable endeavors to replace
the invalid or unenforceable provisions with a valid and enforceable and mutually
satisfactory substitute provision, achieving as nearly as possible the intended commercial
effect of the invalid, illegal or unenforceable provision.
8.8 Waivers And Remedies
No failure or delay by the Parties in exercising any right or remedy provided by law under or
pursuant to this Agreement shall impair such right or remedy or operate or be construed as
a waiver or variation of it or preclude its exercise at any subsequent time and no single or
partial exercise of any such right or remedy shall preclude any other or further exercise of it
or the exercise of any other right or remedy.
8.9 Variation
The Service Provider shall vary the terms of this Agreement (or of any of the documents
referred to in this Agreement) at such circumstances as it may deem fit in the interest of the
Parties to this Agreement. Such variation shall not come into effect unless it is made by an
instrument in writing and signed by duly Authorized Representatives of each of the Parties
hereto. The expression “variation” shall include any variation, amendment, supplement,
deletion or replacement however effected.
8.10Counterparts
23
This Agreement may be executed in one or more counterparts, each of which when duly
executed and delivered shall be deemed an original but all of which together shall
constitute one and the same instrument and any Party may execute this Agreement by
signing any one or more of such originals or counterparts. The delivery of signed
counterparts by facsimile transmission or electronic mail in “portable document format”
(“.pdf”) shall be as effective as signing and delivering the counterpart in person.
8.11Costs and Expenses
Each of the Parties shall bear their own legal costs, disbursements charges and expenses
incurred in and about the negotiation, preparation and execution of this Agreement and
any other document executed in connection with this Agreement including but not limited
to the Shareholders Agreement. However, stamp duty payable in relation to this
Agreement, the Shareholders Agreement and any other document executed in connection
with this Agreement shall be borne by the Startup.
SCHEDULE A
Educational Services to be provided by the Service Provider on a best efforts basis
I. Services to the Startup
A) Providing mentoring including access to a pool of external mentors, which may include
arranging and organizing training, mentoring and other activities conducted by external
experts and agencies;
B) Suggestions on viable products and guidance in product development;
C) Introduction to Potential Customers, Potential Investors and Potential Acquirers ;
D) Assistance in promotion of the Startup’s Business; and
24
E) Introduction of the Startup to acceleration programs for accelerating the Business
aimed to achieve financial success.
II. Services to the Founders
A) Providing mentoring including access to a pool of external mentors, which may include
arranging and organizing training, mentoring and other activities conducted by external
experts and agencies;
B) Suggestions on viable products and guidance in product development;
C) Introduction to Potential Employers, Potential Investors in the Startup and Potential
Acquirers;
25
SCHEDULE B
Key Employees
1. ___________________________________________ (name), _______________________
(designation), s/d/o ________________________________________________, aged ____
years, holding PAN card / Passport / Aadhar card / driving license No _______________
and residing at
__________________________________________________________________ and
having permanent residence at _____________________________________________
_________________________________________. Tel No: _______________________.
Cell No ____________________.
2. ___________________________________________ (name), _______________________
(designation), s/d/o ________________________________________________, aged ____
years, holding PAN card / Passport / Aadhar card / driving license No _______________
and residing at
__________________________________________________________________ and
having permanent residence at _____________________________________________
_________________________________________. Tel No: _______________________.
Cell No ____________________.
3. ___________________________________________ (name), _______________________
(designation), s/d/o ________________________________________________, aged ____
years, holding PAN card / Passport / Aadhar card / driving license No _______________
and residing at
__________________________________________________________________ and
having permanent residence at _____________________________________________
26
_________________________________________. Tel No: _______________________.
Cell No ____________________.
IN WITNESS WHEREOF, the said Service Provider, the Startup and the Founders have put their
respective signatures hereunder on the day, month and year first above written.
Signed and delivered for and on behalf
of MOBME WIRELESS SOLUTIONS
LIMITED
By:
Title:
Signed and delivered for and on behalf of
__________________________________
(Startup)
By:
Title:
Signed and delivered ___________
Founder 1
By:
Title:
Signed and delivered ___________
Founder 2
By:
Title:

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Agreement for Educational Services to Startups

  • 1. 1 AGREEMENT FOR EDUCATIONAL SERVICES TO STARTUPS This Agreement for Educational Services to Startups (“Agreement”) is executed at ________ on this _____ day of _______________ and is applicable with effect from ______________ (“Effective Date”) BETWEEN: MOBME WIRELESS SOLUTIONS LIMITED, an unlisted public company incorporated under the aegis of the Companies Act, 1956, having its registered office at 41/3197, Fourth Floor, Bhageeratha Square, Near Town Hall, Kacherippady, Cochin – 682018 (hereinafter referred to as “Service Provider” which expression shall, unless repugnant to the context or meaning thereof, mean and include its successors and assigns) of the First Part; AND M/s _______________________________, a partnership firm / limited liability partnership registered under the Indian Partnership Act, 1932 at present carrying on the business of [insert main / current business of the partnership] and having its registered office at _________________________________ represented herein by its Partner: Mr. / Ms. _____________________, aged ___ yrs., son / wife / daughter of ______________________, residing at _____________________ (hereinafter referred to as the “Startup”, which expression shall, unless repugnant to the context or meaning thereof, mean and include its successors and assigns) of the Second Part; AND Mr. / Ms. ____________ ____________________, aged _______ yrs., son / wife / daughter of _____________________, residing at ____________________________ (hereinafter referred to as a “Founder 1”, which expression shall, unless repugnant to the context or meaning thereof, mean and include his/her successors and assigns) of the Third Part.
  • 2. 2 AND Mr. / Ms. ____________ ____________________, aged _______ yrs., son / wife / daughter of _____________________, residing at ____________________________1 (hereinafter referred to as a “Founder 2”, which expression shall, unless repugnant to the context or meaning thereof, mean and include his/her successors and assigns) of the Fourth Part. Founder 1 and Founder 2 shall hereinafter be collectively referred to as the “Founders” and individually as the “Founder”. It is hereby clarified that the Founders are executing this Agreement not only in their capacity as a Partner/promoter of the Startup, but in their individual capacity as well. The Service Provider, the Startup and each of the Founders are hereinafter individually referred to as “Party” and collectively as “Parties”. WHEREAS: A. The Service Provider is inter alia engaged in the business of providing educational services to technology start-ups aimed to help grow their business. B. The Startup being a technology Startup desirous of availing the Services (as defined hereinafter in Section 1.1 (s) of this Agreement) to help it develop a commercially viable business involving [details of the proposed business to be described here] (“Business”) has applied to the Service Provider to provide the same. C. Having selected the Startup from a list of applicants interested in availing the Services, the Service Provider has agreed to provide the Services to the Startup and accordingly, the Parties have agreed to enter into this Agreement for recording the terms on which the said Services will be provided and availed, the consideration payable for the same and other terms and conditions incidental and ancillary to the said purpose. 1 Insertnames and details of all thePartners and have all of them sign the Agreement.
  • 3. 3 NOW THEREFORE, for and in consideration of the foregoing, and the representations, warranties, and conditions set forth below, the Parties hereto, intending to be legally bound, hereby agree as follows: 1. DEFINITIONS AND INTERPRETATION 1.1 Definition In this Agreement, including in the Recitals, and unless the context requires otherwise, the following words and expressions shall have the following meanings: (a) “Agreement” means this Agreement together with its Schedules, as the same may be amended, modified and/or supplemented from time to time in writing in accordance with the terms and conditions hereof; (b) “Authorized Representative” means any person duly authorized as such by each Party for any purpose in connection with this Agreement; (c) “Business” shall have the meaning ascribed to it in Recital B of this Agreement; (d) “Company” shall mean the company incorporated by the Startup pursuant to Section 4.1 of this Agreement. For the avoidance of doubt, all references to the “Startup” in this Agreement shall also mean and include a reference to the Company after the Company signs a deed of adherence in accordance with Section 4.2 below; (e) “Cost to Company” refers to the total expenses incurred by a company on a given employee in a year; (f) “Founders” shall have the meaning as defined in the Description of Parties. For the avoidance of doubt, all references to a “Founder” or “Founders” in this Agreement shall mean and include a reference to the said individual (i) as a Partner of the Startup, and (ii) as a shareholder, promoter, director and/or employee of the Company after the Company has been incorporated and signs a deed of adherence in accordance with Section 4.2 below.
  • 4. 4 (g) “Fully Diluted Basis” means the calculation of the value of the Startup on the assumption that all outstanding convertible securities, stock options and outstanding commitments by the Startup to issue equity shares at a future date, whether or not due to the occurrence of an event or otherwise, have been so converted, exercised or exchanged (or issued, as the case may be) and Fully Diluted shall be interpreted accordingly; (h) “Gross Contract Revenue” means the total sale price and/or license fees and/or consideration paid and/or to be payable to the Startup by its Potential Customers; (i) “Government” shall include the President of India, the Government of India, the Governor and the Government of any State in India, any Ministry or Department of the same and any local or other authority exercising powers conferred by Law; (j) “Key Employees” means the Founders and other promoters and employees of the Startup as set out in Schedule B hereto and shall include those who join the Startup after the execution of this Agreement and is identifiable as a Key Employee in the Service Provider’s sole opinion; (k) “Law” includes all statutes, enactments, Acts of Legislature or Parliament, laws, ordinances, rules, bye-laws, regulations, notifications, guidelines, policies, directions, directives and orders of any Government, Statutory Authority, Tribunal, Board, Court or recognized Stock Exchange and if applicable, international treaties and regulations as amended from time to time; (l) “Losses” includes all losses, claims, costs, and damages (whether direct, indirect, general, special, absolute, accrued, conditional or otherwise and whether or not resulting from third party claims), including interests and penalties with respect thereto and out-of-pocket expenses, including reasonable attorneys' and accountants' fees and disbursements; (m) “Monitoring Committee” shall have the meaning ascribed to it in Section 5;
  • 5. 5 (n) “Potential Acquirer” shall mean any person/entity introduced to the Startup by the Service Provider for a potential acquisition in terms of Section 3.1 (d) or Section 3.7 and shall also include Potential Customers, Potential Employer and Potential Investors. (o) “Potential Customers” are those customers introduced / referred by the Service Provider to the Startup who may be interested to buy and avail Startup’s products and services; (p) “Potential Employer” means an employer referred to in Section 3.6 to whom a Founder of the Startup is introduced by the Service Provider; (q) “Potential Investors” are those investors and/or financiers introduced / referred by the Service Providers to the Startup who may be interested to invest in the Startup and/or provide financial assistance to the Startup.; (r) “Pre-money Valuation” means the value of the Startup arrived at immediately prior to the infusion of any investment into the Startup by Potential Investors by calculating the same on a Fully Diluted Basis; (s) “Services” means the educational services being provided/to be provided by the Service Provider to the Startup and/or the Founders (or any of them) on a best efforts basis as set forth in Section 2 hereunder and more fully set out in Schedule A of this Agreement; (t) “Shareholders Agreement” shall refer to the shareholders agreement to be entered into by all the shareholders of the Startup with the Service Provider (or its nominees). 2 SCOPE OF SERVICES 2.1 For the due consideration payable by the Startup as set forth in Section 3 of this Agreement, the Service Provider shall provide on a best efforts basis the services for the period of the Agreement as set out in Section 6.1 to (i) help the Startup grow and develop its Business and (ii) to help the Founders (in their individual capacity) get employment or get ‘acqui-
  • 6. 6 hired’, as more fully set out in Schedule A of this Agreement (hereinafter collectively referred to as the “Services”). 2.2 If the Startup has been availing any services from the Service Provider prior to the Effective Date of this Agreement and is executing this Agreement to avail the Services under this Agreement, then the following conditions shall also apply: (a) There shall not be any refund of any payments, if any, made by the Startup prior to the Effective Date; and (b) All agreements, if any, entered into between the Startup and the Service Provider shall stand terminated and inoperative as of the Effective Date of this Agreement. 3 CONSIDERATION A. Consideration payable by the Startup for Services rendered to the Startup 3.1 As consideration for the Services provided by the Service Provider as per this Agreement, the Startup shall pay and provide the Service Provider with the following: a) If the Startup generates revenues from Potential Customers, the Startup agrees to pay to the Service Provider, a payment of Five percent (5%) of the Gross Contract Revenue generated from each Potential Customer for the first Three (3) years from the date of first sale and/or license of products and/or rendering of services to the Potential Customers. Such amounts shall be payable by the Startup to the Service Provider within Twenty (20) days from the date of receipt of any amounts / consideration whatsoever by the Startup (or its nominees) from any Potential Customer. b) (i) In the event of any investment whatsoever by any Potential Investor into the Company incorporated by the Startup at any time after the Effective Date
  • 7. 7 hereof, the Service Provider shall have the right, at their sole and absolute discretion, to co-invest along with such Potential Investors up to a maximum of Thirty percent (30%) of the total investment proposed to be raised by the Startup from such Potential Investors at the given point of time till the Startup reaches a Pre-money Valuation of INR Sixty Crores (INR 60,00,00,000/-) or US Dollars Ten million (US$ 10,000,000). In the event of such co-investment into the Company by the Service Provider, the Startup shall ensure that the Service Provider is provided with rights similar to those provided to the Potential Investors proportionate to the Service Provider’s shareholding in the Company including but not limited to the rights set out in Section 4.1 hereunder. (ii) The price at which the Service Provider shall be allotted and issued equity shares (or such other securities as are proposed to be allotted and issued to the other Potential Investors for their investment) for the investment by the Service Provider shall be calculated based on a discount of Thirty percent (30%) of the Pre-money Valuation, i.e. the price at which the Service Provider shall be issued and allotted equity shares (or such other securities) shall be at a Thirty percent (30%) discount to the price per share / other security at which such shares / other securities are to be allotted and issued to the Potential Investors. The Service Provider shall have the absolute right to transfer / assign / novate in whole (or in part), and in one or multiple stages, their right to investment in the Company and/or the shares / other securities that may be held by them in the Company from time to time to any other persons or entities as they deem appropriate and the Startup shall do all the necessary corporate actions to facilitate and perfect the issue / transfer of such shares / other securities to such nominee(s) of the Service Provider. (iii) Where the Startup incorporates a new entity outside India for similar product/ideas or correlated activities of the Business or to raise funding for the
  • 8. 8 development of products or its Business as contemplated under this Agreement, the Service Provider shall at their discretion have the right to co-invest, as mentioned above, as they deem fit in such entities outside India by themselves / through their nominee(s). The terms and conditions in relation to the Service Provider’s (and/or their nominees’) shareholding in the Startup shall be as set forth in a Shareholders Agreement as contemplated in Section 4.1 hereunder. (iv) The Service Providers will have this right to co-invest at a discount, for only one (1) round of investment proposed to be raised by the Startup. The Service Providers will have the right to invest in future rounds of investment proposed to be raised by the Startup in proportion to its shareholding should it desire to do so, but without a discount. c) If the Startup receives any funding in any manner, by way of equity, debt, convertible debt, grants, financial discounts, etc., from any such Potential Investors introduced by the Service Providers, the Startup agrees to pay the Service Provider an arranger’s fee of Two-and-a-half percent (2.5%) of the total funding received by the Startup from such Potential Investors. Such amounts shall be payable by the Startup to the Service Provider within Twenty (20) days from the date of receipt of any such funds / financial benefits whatsoever by the Startup from the Potential Investor. d) In the event that the Business, assets, Key Employees and/or the intellectual property rights of the Startup are wholly / partly sold, transferred or surrendered to any Potential Acquirer and/or the Key Employees of the Company take up employment / engagement with any Potential Acquirer and the Startup receives any consideration whatsoever in cash / kind as mentioned above in connection with such sale, transfer or surrender and/or the mass resignation and/or movement of the Key Employees to employment / engagement with another
  • 9. 9 Potential Acquirer, the Startup agrees to pay the Service Provider Twenty percent (20%) of the aggregate value of all consideration whatsoever (including but not limited to cash, securities, options any other properties and assets whatsoever) received (or to be received over a period of time) by the Startup. Such amounts shall be payable by the Startup to the Service Provider within Twenty (20) days from the date of receipt of any such funds / financial benefits / consideration whatsoever in kind by the Startup from the Potential Acquirer. 3.2 If and when the Startup reaches/crosses a valuation of INR Sixty Crores (INR 60,00,00,000/-) or US Dollars Ten million (US$ 10,000,000), and it raises further investment, the Service Provider shall also have the right to invest in the Startup in proportion to its shareholding at the time of such investment should it desire to do so. 3.3 The Startup undertakes to keep the Service Provider informed in writing every time it proposes to bring in further investment or funds in the Startup either from the existing shareholders or from third party investors at any time after the Effective Date at least Fifteen (15) days before it enters into negotiations to raise such investments / funds. The Startup shall also notify the Service Provider within Ten (10) days of entering into any sale / supply / license / services agreement with any Potential Customers. 3.4 The Service Provider (or their affiliates or nominees) shall also be entitled at their discretion to charge the Startup, fees and expenses on a monthly basis (or such other periodic basis as decided by the Service Provider) for arranging and organizing training, mentoring and other educational activities conducted for the benefit of the Startup. All such fees shall be notified to the Startup in writing and amounts as invoiced by the Service Provider (or their affiliates or nominees) towards the said fees shall be payable by the Startup within Ten (10) days of the date of the relevant invoice / bill, time being of the essence.
  • 10. 10 3.5 For the avoidance of doubt, it is hereby agreed and confirmed by the Startup that the Services offered by the Service Provider under this Agreement and introduction of Potential Customers and Potential Investors to the Startup under this Agreement, irrespective of the contingency of termination of this Agreement during its term as set out in Section 6.1 constitute adequate consideration for the revenue sharing to be paid as per Section 3.1(a), the discounted price at which shares / other securities are to be allotted and issued to the Service Provider by the Startup as per Section 3.1(b), the arranger’s fee to be paid as per Section 3.1(c), the amounts to be paid as per Section 3.1(d) and the fees and expenses to be paid / reimbursed in accordance with Section 3.4. The Startup agrees to make prompt payment of the amounts mentioned in Section 3.1 (a), 3.1(c), 3.1(d) and Section 3.4 above, time being of the essence. B. Consideration for Services rendered to the Founders in their individual capacity 3.6 Job Referral The Service Provider may from time to time introduce a Founder to potential employers (“Potential Employer”). If a Founder receives and accepts an offer of employment from a Potential Employer, the Founder agrees to pay the Service Provider an amount equal to Ten percent (10%) of the Founder’s annual salary on a Cost to Company basis for his/her first year of employment within Fifteen (15) days from the date of first salary disbursal by such Potential Employer, time being of the essence. For the avoidance of doubt, it is hereby agreed and confirmed by the Founders that the services provided by the Service Provider in introducing the Founders (or any of them) to the Potential Employer thereby assisting the Founder in obtaining employment constitutes adequate consideration for the amounts payable by the Founder in accordance with this Section 3.6. 3.7 Acquisition of the Startup or Acquihire of Key Employees
  • 11. 11 In consideration of the Services provided by the Service Provider to the Founders and the Startup in accordance with this Agreement, each of the Founders agree to pay the Service Provider Twenty percent (20%) of the aggregate value of all cash bonuses (including sign-on bonuses and retention / staggered bonuses) and all other consideration whatsoever (including but not limited to cash, securities, options any other properties and assets whatsoever) received (or to be received over a period of time) by the Founder in the following events: a) If the Startup is acquired wholly / partly by a Potential Acquirer and the Founder receives any such consideration as mentioned above paid / payable in cash / kind for either (a) purchase of shares and other securities or the stake held by the Founder in the Startup and/or (b) otherwise in connection with / consideration for such acquisition; or b) If the business, assets, Key Employees and/or the intellectual property rights of the Startup are wholly / partly sold, transferred or surrendered to any Potential Acquirer and/or the Key Employees of the Startup take up employment / engagement with any one other person / entity and the Founder receives any consideration whatsoever in cash / kind as mentioned above in connection such sale, transfer or surrender and/or the mass resignation and/or movement of the Key Employees to employment / engagement with a Potential Acquirer. 3.8 It is acknowledged and confirmed by the Founders that the Services provided by the Service Provider as per this Agreement, which will benefit the Founders and Key Employees as well, constitutes adequate consideration for the amounts payable by the Founders to the Service Provider in terms of Section 3.7 above. The amounts referred to in Section 3.7 above shall be payable by the Founder within Fifteen (15) days of the Startup / Founder agreeing to any of the events referred to in Section 3.7 above or the occurrence of the said events, whichever is earlier.
  • 12. 12 3.9 For the avoidance of doubt, it is clarified that Section 3.6 and Section 3.7 are intended to be mutually exclusive. Therefore, if any Founder makes any payment to the Service Provider under Section 3.7 on account of taking up employment under any of the scenarios prescribed in Section 3.7, then in order to avoid any double payment by the said Founder, he/she will be excluded from making any payment under Section 3.6. 4 COVENANTS A. Covenants of the Startup 4.1 The Startup undertakes to incorporate itself as a Company under the Companies Act, 2013 and transfer the Business and all assets of the Startup to the Company. In the event of any proposed investment by the Service Provider pursuant to Section 3.1 above, the Parties agree to enter into a Shareholders Agreement along with the Potential Investors and all other shareholders of the Startup prior to such investment by the Service Provider in the Startup. The aforesaid Shareholders Agreement, which shall be congruous with this Agreement and the interests of the Service Provider and in a form and manner acceptable to the Service Provider, shall mandatorily incorporate the following: a) Tag along rights: In the event of sale of shares in the Startup by the shareholders to third parties, and if so requested by the Service Provider/ its nominee(s), the selling parties shall ensure that the acquiring third parties also acquire the shares held by the Service Provider/ its nominee(s) on the same proportional conditions as the selling parties as a pre-condition to any such sale by the shareholders. The Parties agree that the valuation of shares regarding the aforesaid transaction shall not be prejudicial and detrimental to the reasonable commercial interests of the Service Provider. In the event of such proposed sale of shares in the Startup by the shareholders to third parties, if the Service Provider is of the opinion that the price at which shares are being offered to the third party is lower than the fair value of the shares, the Service
  • 13. 13 Provider will have the right of first refusal to purchase the shares being offered to the third party at the price at which the shares are being offered to the third party. b) Drag along rights: In the event of collective exit to an independent third party, the majority shareholder may require the other shareholders to mandatorily sell their shares to the said independent third party. The sale of shares shall be on the same proportional conditions for each shareholder as all other shareholders. The Parties agree that the valuation of shares regarding the aforesaid transaction shall not be prejudicial and detrimental to the reasonable commercial interests of the Service Provider. c) Anti-dilution clause: The shareholding percentage held by the Service Provider in the Startup shall not be diluted till the Startup, as valued by an independent auditor satisfactory to the Service Provider, reaches a Pre-money Valuation of US Dollars that is higher than the valuation at which the Service Provider has invested in the Startup, up to a maximum Pre-money Valuation of USD 10 Million Dollars, except unless the Service Provider decides not to invest along with the Potential Investors in terms of Section 3.1 above. 4.2 The Startup shall, upon incorporation of the Company and within a period of Fifteen (15) days from the date of incorporation of the Company, ensure that the Company completes the following:- (a) signs a deed of adherence to this Agreement in a form and manner satisfactory to the Service Provider agreeing to abide by all of the confirmations and obligations of the Startup and Company as mentioned in this Agreement; and (b) furnishes to the Service Provider a certified true copy of resolutions passed by the Board of Directors and the shareholders of the Startup / Company ratifying the consideration payable / to be provided as mentioned in Section 3.1 and 3.4 as being reasonable and appropriate consideration for the Services provided by the Service Provider.
  • 14. 14 4.3 The Startup shall not transfer, assign, license, sub license or enter into any arrangement whatsoever and shall not deal with their interests or rights in the Services with any person/s or institutions in any manner whatsoever without the previous written permission and consent of the Service Provider. If, in case any such permission is once granted, the same shall be by a separate agreement as per the terms decided by the Service Provider. 4.4 The Startup shall inform Service Provider in writing of any proposed change in the corporate structure of the Startup and/or any proposed investment in the Startup at least Thirty (30) days prior to such proposed change / investment. 4.5 If the Service Provider has invested in the Company and as long as the Service Provider holds shares in the Company, the Startup shall not, without the approval of the Service Provider, undertake or permit the following the actions: (a) undertake or permit any merger, consolidation, scheme of arrangement or compromise with its creditors or shareholders or effect any scheme of amalgamation or reconstitution.; (b) revalue its assets any time during the term of this Agreement; and (c) transfer, assign, dispose of, pledge, charge, hypothecate, mortgage or create any lien or in any way encumber any of its undertakings, properties and assets or Business in favour of any third party. (d) change the nature or scope of the Business and of any event or condition, which might materially and adversely affect or delay growth or development of the Business. 4.6 The Startup shall promptly notify the Service Provider in the following circumstances: a) on the happening of any event which will have or likely to have an adverse effect on
  • 15. 15 the Business; and b) force majeure circumstances and/or circumstances beyond the reasonable control of the Startup against which the Startup may or may not have insured its properties. 4.7 The Startup shall comply with all the Laws for the time being in force that would be applicable to the Startup and shall comply with any regulations therein including but not limited to filing of any forms, acquiring any licenses, submitting any returns with any statutory authority or any Government. 4.8 The Startup undertakes to provide a monthly general update on its Business and financial affairs on or before the Tenth (10th) business day of every month. 4.9 The Startup also undertakes to submit itself to the annual audit of the Service Provider, which shall be carried out at the sole discretion of the Service Provider. The Startup, upon written request of the Service Provider, undertakes to provide all the pertinent documents, records and information as required by the Service Provider during the tenure of this Agreement. 4.10 All indirect taxes, if any, payable in connection with the services provided by the Service Provider to the Startup and/or the consideration payable or to be provided by the Startup for the same shall be borne solely by the Startup and shall be paid in addition to the amounts and other consideration referred to in Section 3.1 and 3.4 above. B. Covenants of the Founders in their individual capacity 4.11 Each of the Founders covenant in their individual capacity as follows: (a) The Founder shall keep the Service Provider informed of all developments pertaining to securing an employment with any Potential Employer. The Founder
  • 16. 16 shall also notify the Service Provider in writing within Seven (7) days of receiving an offer of employment from a Potential Employer. Such notice shall also enclose a copy of the offer letter. (b) The Founder shall duly inform the Service Provider in writing within Seven (7) days of the Startup / Founder entering into any discussions with any person for a sale, transfer or surrender in whole / in part of the Startup or its business or the Key Employees or any of the assets of the Startup including its intellectual property rights. (c) The Founder shall duly and promptly inform the Service Provider in writing within two (2) days of any change in employment, engagement or time spent on the business of the Startup by any of the Key Employees including the Founder. 5 MONITORING COMMITTEE 5.1 The Service Provider shall be entitled to appoint a Monitoring Committee comprising of the representatives of the Service Provider and other experts for evaluating the performance of the Startup and its Business. 5.2 The Monitoring Committee shall continuously monitor the Business and activities of the Startup. 5.3 The Startup shall permit the Monitoring Committee or any Authorized Representative of the Service Provider to carry out technical and financial inspections during the term of this Agreement and to inspect all records, documents, registers and accounts of the Startup. Any such representative of the Monitoring Committee or Service Provider shall have free access at all reasonable times to any part of the Startup's assets and to its records, registers and accounts and to all schedules, costs, estimates, plans and specifications relating to the Business and shall receive full co-operation and assistance from the employees of the Startup.
  • 17. 17 6 TERM AND TERMINATION 6.1 This Agreement is valid from the Effective Date and shall be in force for a period of Five (5) years from the date of first product launch by the Startup. 6.2 This Agreement can be renewed or amended on such terms as may be mutually agreed to by the Parties. 6.3 The Startup shall not be entitled to terminate this Agreement during the term of the Agreement as set out in Section 6.1. The Service Provider shall have the right to terminate this Agreement during its term as set out in Section 6.1and/or discontinue provision of the Services, after giving a Fifteen (15) days’ notice, in the following circumstances: - (a) Where the Startup violates any of the terms and conditions of this Agreement or the Shareholders Agreement executed in pursuance of this Agreement; or (b) Where the Startup violates any representation and warranties mentioned hereinabove and such other rules and regulations as may be framed by Service Provider, from time to time; or (c) Commits any fraud, theft or any other offence punishable under law; or (d) Unsatisfactory performance of the Startup as per the determination of Monitoring Committee; or (e) Such other circumstances as may deem fit in the interest of the Parties to this Agreement. 6.4 For the avoidance of doubt, it is agreed that any termination of this Agreement shall not affect any shares and securities subscribed to / held by the Service Provider (and their nominees) and their rights as shareholders in the Startup; and the Service
  • 18. 18 Provider (and their nominees) will be entitled to retain such shares and securities held by them in the Startup. It is further clarified and agreed that the termination of this Agreement by the Service Provider prior to expiry of the term as set out in Section 6.1, shall not, in any manner, adversely affect the rights of the Service Provider under Section 3. All other provisions of this Agreement (including the indemnity obligations of the Startup) as are necessary for the Service Provider to receive the full economic consideration and benefits as referred to in Section 3 shall survive termination of the Agreement and continue to be in force between the Parties. 6.5 If the Startup and/or any of the Founders violate / fail to comply with any of the clauses mentioned in this Agreement as applicable to them, the Service Provider will have absolute discretion to take necessary actions including but not limited to initiating legal action for specific performance, claiming damages or other remedies as available under Law. 7 INDEMNIFICATION The Startup and each of the Founders shall keep the Service Provider indemnified in the event of Losses or damage suffered by the Service Provider owing to any fraud, negligence or misrepresentation or any default in compliance with any of the terms of this Agreement (as are applicable to them) on the part of the Startup and/or the Founders as the case may be. 8 MISCELLANEOUS 8.1 Service of Notice Service of a notice or any communication must be effected by one of the following methods:
  • 19. 19 (a) by hand to the relevant address as set out in Section 8.2 and shall be deemed served upon delivery, if delivered during a business day or at the start of the next business day, if delivered at any other time; or (b) by prepaid first-class post/registered post/speed post to the relevant address set out in Section 8.2 and shall be deemed served at the start of the Fourth (4th) business day after the date of posting; or (c) by electronic mail transmission in “portable document format” (“.pdf”) to the relevant e-mail addresses set out in Section 8.2 and shall be deemed served on dispatch, if dispatched during a business day or at the start of the next business day, if dispatched at any other time, provided that in each case a receipt indicating complete transmission of the notice is obtained by the sender. 8.2 Address for Service MobME: Name: __________________________________________ Designation: _____________________________________ Address: _________________________________________________________________ ________________________________________________________________________. Email: __________________________________________________ Startup: Name: __________________________________________ Designation: _____________________________________ Address: _________________________________________________________________ ________________________________________________________________________. Email: __________________________________________________
  • 20. 20 Founder 1: Name: __________________________________________ Designation: _____________________________________ Address: _________________________________________________________________ ________________________________________________________________________. Email: __________________________________________________ Founder 2: Name: __________________________________________ Designation: _____________________________________ Address: _________________________________________________________________ ________________________________________________________________________. Email: __________________________________________________ 8.3 Applicable Law & Settlement of Disputes This Agreement shall be construed, governed by, interpreted and applied in accordance with the Laws of India. Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under Arbitration and Conciliation Act, 1996 and shall be conducted by the Indian Institute of Arbitration & Mediation (“IIAM”), in accordance with their Arbitration Rules ("IIAM Arbitration Rules") for the time being in force. The Tribunal
  • 21. 21 shall consist of one arbitrator to be appointed by the Parties. In case the Parties fail to agree upon the appointment of a sole arbitrator, the arbitration shall be conducted by a panel of Three (3) arbitrators consisting of One (1) arbitrator appointed by the Service Provider, One (1) arbitrator appointed jointly by the Startup and the Founders (or any one or more of them as the case may be) and the third arbitrator, who shall be the Presiding Arbitrator, appointed by the Administrator of IIAM. The award of the arbitrator(s) shall be final, binding and conclusive on the Parties. The venue of the arbitration proceedings shall be at the IIAM premises or any other neutral location in Cochin, India and the proceedings shall be conducted in English. Subject to the above, the courts in Cochin, Kerala shall have jurisdiction over all matters relating to this Agreement. 8.4 Entire agreement This Agreement together with any agreement specifically executed pursuant to this Agreement constitutes the whole and only agreement between the Parties relating to the Services. This Agreement supersedes and extinguishes any prior drafts, agreements, undertakings, representations, warranties and arrangements of any nature whatsoever, whether or not in writing, relating thereto. 8.5 English Language All notices or formal communications under or in connection with this Agreement shall be in the English language. 8.6 Assignment Unless specifically otherwise provided in this Agreement, neither Party shall have the right to assign their respective rights hereunder or transfer their respective rights and obligations, in whole or in part, to any third party. Provided however that the Service
  • 22. 22 Provider, may at its discretion, assign, transfer, novate and/or delegate any of its rights and obligations to any third party. 8.7 Severability If any provision of this Agreement is or becomes invalid, illegal or unenforceable under the laws of any jurisdiction, then such provision shall (so far as it is invalid or unenforceable) be given no effect and shall be deemed not to be included in this Agreement but without invalidating any of the remaining provisions of this Agreement which shall not in any way be affected or impaired. The Parties hereto shall then use all reasonable endeavors to replace the invalid or unenforceable provisions with a valid and enforceable and mutually satisfactory substitute provision, achieving as nearly as possible the intended commercial effect of the invalid, illegal or unenforceable provision. 8.8 Waivers And Remedies No failure or delay by the Parties in exercising any right or remedy provided by law under or pursuant to this Agreement shall impair such right or remedy or operate or be construed as a waiver or variation of it or preclude its exercise at any subsequent time and no single or partial exercise of any such right or remedy shall preclude any other or further exercise of it or the exercise of any other right or remedy. 8.9 Variation The Service Provider shall vary the terms of this Agreement (or of any of the documents referred to in this Agreement) at such circumstances as it may deem fit in the interest of the Parties to this Agreement. Such variation shall not come into effect unless it is made by an instrument in writing and signed by duly Authorized Representatives of each of the Parties hereto. The expression “variation” shall include any variation, amendment, supplement, deletion or replacement however effected. 8.10Counterparts
  • 23. 23 This Agreement may be executed in one or more counterparts, each of which when duly executed and delivered shall be deemed an original but all of which together shall constitute one and the same instrument and any Party may execute this Agreement by signing any one or more of such originals or counterparts. The delivery of signed counterparts by facsimile transmission or electronic mail in “portable document format” (“.pdf”) shall be as effective as signing and delivering the counterpart in person. 8.11Costs and Expenses Each of the Parties shall bear their own legal costs, disbursements charges and expenses incurred in and about the negotiation, preparation and execution of this Agreement and any other document executed in connection with this Agreement including but not limited to the Shareholders Agreement. However, stamp duty payable in relation to this Agreement, the Shareholders Agreement and any other document executed in connection with this Agreement shall be borne by the Startup. SCHEDULE A Educational Services to be provided by the Service Provider on a best efforts basis I. Services to the Startup A) Providing mentoring including access to a pool of external mentors, which may include arranging and organizing training, mentoring and other activities conducted by external experts and agencies; B) Suggestions on viable products and guidance in product development; C) Introduction to Potential Customers, Potential Investors and Potential Acquirers ; D) Assistance in promotion of the Startup’s Business; and
  • 24. 24 E) Introduction of the Startup to acceleration programs for accelerating the Business aimed to achieve financial success. II. Services to the Founders A) Providing mentoring including access to a pool of external mentors, which may include arranging and organizing training, mentoring and other activities conducted by external experts and agencies; B) Suggestions on viable products and guidance in product development; C) Introduction to Potential Employers, Potential Investors in the Startup and Potential Acquirers;
  • 25. 25 SCHEDULE B Key Employees 1. ___________________________________________ (name), _______________________ (designation), s/d/o ________________________________________________, aged ____ years, holding PAN card / Passport / Aadhar card / driving license No _______________ and residing at __________________________________________________________________ and having permanent residence at _____________________________________________ _________________________________________. Tel No: _______________________. Cell No ____________________. 2. ___________________________________________ (name), _______________________ (designation), s/d/o ________________________________________________, aged ____ years, holding PAN card / Passport / Aadhar card / driving license No _______________ and residing at __________________________________________________________________ and having permanent residence at _____________________________________________ _________________________________________. Tel No: _______________________. Cell No ____________________. 3. ___________________________________________ (name), _______________________ (designation), s/d/o ________________________________________________, aged ____ years, holding PAN card / Passport / Aadhar card / driving license No _______________ and residing at __________________________________________________________________ and having permanent residence at _____________________________________________
  • 26. 26 _________________________________________. Tel No: _______________________. Cell No ____________________. IN WITNESS WHEREOF, the said Service Provider, the Startup and the Founders have put their respective signatures hereunder on the day, month and year first above written. Signed and delivered for and on behalf of MOBME WIRELESS SOLUTIONS LIMITED By: Title: Signed and delivered for and on behalf of __________________________________ (Startup) By: Title: Signed and delivered ___________ Founder 1 By: Title: Signed and delivered ___________ Founder 2 By: Title: