exhibit_10-2.htm


    EXHIBIT
10.2

     

    CONSULTING
AGREEMENT

    
      


      


      THIS
CONSULTING AGREEMENT (“Agreement”) is entered as of December 9 , 2008 and made
effective December 12, 2008 by and between Michael J. McClane (“Consultant”) and
U.S. Auto Parts Network, Inc. (“Company”).

      


      RECITALS

      


      Company
desires to engage Consultant, as an independent contractor, to perform the
services described in this Agreement and Consultant desires to perform such
services for the Company, in accordance with the terms and conditions set forth
in this Agreement.  This Agreement is not an employment agreement, nor
does there exist any intent between Consultant and Company to create an
employment relationship between Company and Consultant.

      


      AGREEMENT

      


      NOW,
THEREFORE, in consideration of the mutual covenants and agreements contained in
this Agreement, the parties agree as follows:

      


      1.    Consulting
Services.  Consultants agree to provide the ongoing and transitional
services that a Chief Financial Officer would provide to a company, and such
other services as may be agreed to by the parties hereto (collectively, the “
Consulting Services ”).  These services will include transitioning the
duties of a Chief Financial Officer to other Company employees as well as to any
new Chief Financial Officer who may be hired by Company during the consulting
period.  These services will also include participating in the annual
audit of the Company’s financials for the year ending December 31,
2008.  Consultant will perform the Consulting Services as requested by
the Chief Executive Officer or the Board of Directors of
Company.  Consultant shall utilize the highest professional standards
of practice in performing services for the Company. Company shall not dictate
the work hours of Consultant and, except as otherwise specified herein, shall
not have the right to control the manner, means or method by which Consultant
performs the Consulting Services, but rather, shall be entitled only to direct
Consultant with respect to the expected results of the Consulting Services and
the due dates for such results to be delivered to Company.

      


      2.    Term.  This
Agreement shall terminate on March 31, 2009, unless earlier terminated by the
Company for Cause or extended by the mutual written agreement of the
parties.  “Cause ” shall mean (i) the commission of any act of fraud,
embezzlement or dishonesty by Consultant, (ii) Consultant’s breach of any
obligation under this Agreement, including obligations relating to the
Confidential Information (as defined below), or (iii) any other misconduct by
Consultant adversely affecting the business or affairs of the Company (or any
affiliate) in any manner.  Consultant’s obligations described in
Sections 4 through 8 shall survive termination of this Agreement. In the event
the applicable circumstance set forth in subparagraphs (ii) or (iii) above is
capable of cure by Consultant, then Company shall not terminate this Agreement
“with cause” without having first given the Consultant written notice of the
circumstance, such notice stating details thereof and the Company’s allegation
of the Consultant’s breach with respect thereto and affording Consultant ten
(10) business days after receipt of such notice to cure such circumstance,
breach or default.

      


      3.    Fees
and Expenses.

       (a)    At
execution of this Agreement, Company shall pay Consultant a retainer of
$20,000.  Consultant’s hourly billing rate shall be $500 for the month
of December and shall be reduced to $200 for hours billed as of January 1, 2009.
Company shall pay consultant a minimum of 88 hours for the month of December
2008.  Consultant shall submit monthly invoices for Consulting
Services performed, which invoices shall include the hours worked and the
services performed. Invoices shall be paid within 15 days of receipt by
Company.

      


      (b)    Company
shall pay the costs of Consultant’s blackberry and cellular telephone service
for the first 90 days of the consulting term.  Company shall
additionally reimburse reasonable costs and expenses specifically incurred by
Consultant in providing the Consulting Services in accordance with the Company’s
expense reimbursement guidelines.  Any single expense which will
exceed $250.00 must be approved in advance by the Company’s Chief Executive
Officer, or the Company may elect at its sole discretion not to reimburse
Consultant for that expense. Company retains the right to determine the
reasonableness of any submitted expense and to deny unreasonable expenses in its
sole discretion.  Company will not reimburse Consultant for basic
office expenses including, but not limited to, a laptop computer, meals, office
space, equipment, telephone, postage, copying, stationery and business
cards.  Consultant agrees to submit all requests to reimburse expenses
within thirty (30) days of incurring the expense.

      


      4.    Confidential
Information.

      


      (a)    Consultant
acknowledges that Consultant may acquire information and materials about the
Company, including but not limited to information about the Company’s
operations, services, computer programs, algorithms, application programming
interfaces, technology, ideas, know-how, processes, formulas, compositions,
data, techniques, improvements, inventions (whether patentable or not), works of
authorship, business and product development plans, financial data, accounting
methods and treatment, financial results, cash flow, invoice payment, strategy
regarding business lines, customers, customer information, and other information
concerning the Company’s actual or anticipated business, or which is received in
confidence by the Company or for the Company from any other person or entity,
and that all such information and materials are and shall be the trade secret
and confidential and proprietary information of the Company (hereinafter
referred to as “ Confidential Information ”).  At all times, both
during the term of this Agreement and after its termination, Consultant will
keep in confidence and trust and will not use any Confidential Information
without the prior written consent of an officer of the Company except as may be
necessary and appropriate in the ordinary course of performing the Consulting
Services under this Agreement. Consultant acknowledges that any disclosure or
unauthorized use of Confidential Information will constitute a material breach
of this Agreement. Consultant hereby acknowledges and agrees that all such
Confidential Information shall be the sole and exclusive property of the
Company.  Confidential Information does not include information
that:  (i) is now, or hereafter becomes, through no act or failure to
act on the part of Consultant, generally known or available to the public; (ii)
was known by Consultant without restriction as to use or disclosure before
receiving such information from Company; or (iii) is hereafter rightfully
furnished to Consultant on a non-confidential basis by a third
party.

      


      (b)    Mr.
McClane acknowledges and agrees that the obligations under his Confidential
Information and Invention Assignment Agreement that he executed on 2/24/06 and
that Confidentiality and Non-Disclosure Agreement that he executed on 2/14/06
(the “Prior Confidentiality Agreements) which are effective as of the date of
this Agreement, shall remain in full force and effect in accordance with their
terms and shall not be deemed to be modified by this Agreement.

      


      5.    Company
Materials.  Consultant agrees as follows:

      


      (a)    All
Company Materials (as defined below) shall be the sole and exclusive property of
the Company.  Consultant will not remove any Company Materials from
the business premises of the Company or deliver any Company Materials to any
person or entity outside the Company, except as required in connection with
performance of the Consulting Services under this
Agreement.  Consultant will not copy or download to any computer or
other equipment owned by Consultant any Confidential Information unless prior
written consent to such copying or downloading is obtained from the
Company.  Should the Company authorize downloading or copying of
Confidential Information to Consultant’s computer systems or other equipment,
Consultant agrees and warrants that such information will be kept in a separate
file(s), segregated from all other information belonging to Consultant or any
other entity.  For purposes of this Agreement, “ Company Materials ”
are documents or other media or tangible items that contain or embody
Confidential Information or any other information concerning the business,
operations or plans of the Company, whether such documents have been prepared by
Consultant or by others. “Company Materials” include, but are not limited to,
software, code, drawings, photographs, charts, graphs, notebooks, customer
lists, computer media or printouts, sound recordings and other printed,
typewritten or handwritten documents, as well as samples, prototypes, models,
products and the like.  For the purposes of this Agreement, “Results”
means any and all deliverables or results of the Consulting Services including,
without limitation, all Assigned Invention Ideas.

      


      (b)    Upon
termination of this Agreement, Consultant will immediately erase all files
containing Company information in their entirety.  Consultant further
agrees that, immediately upon the Company’s request and in any event upon
completion of the Consulting Services, Consultant shall deliver to the Company
all Company Materials, any document or media that contains Results, apparatus,
equipment and other physical property or any reproduction of such property,
excepting only Consultant’s copy of this Agreement.  In addition,
Consultant will remove from any equipment that belongs to Consultant, including
any computer or hard drive that belongs to Consultant, all Confidential
Information and will allow the Company to inspect all computers and hard drives
used by Consultant to insure that all material has been removed.

      


      6.    Inventions.  Consultant
further agrees as follows:

      


      (a)    Consultant
agrees to assign, and does hereby assign, to the Company without further
consideration all right, title, and interest that Consultant may acquire
(throughout the United States and in all foreign countries), free and clear of
all liens and encumbrances, in and to each Assigned Invention Idea (as defined
below), which was developed by Consultant specifically for the Company pursuant
to this Agreement (such specific development to be evidenced by a writing
describing the Company’s development request and Consultant’s acceptance of such
request in writing, which may consist of electronic mail).  All such
Assigned Invention Ideas shall be the sole property of the Company, whether or
not patentable.  Without limiting the foregoing, Consultant agrees
that any such original works of authorship shall be deemed to be “works made for
hire” and that the Company shall be deemed the author of them under the U.S.
Copyright Act (Title 17 of the U.S. code), provided that in the event and to the
extent such works are determined not to constitute “works made for hire” as a
matter of law, Consultant irrevocably assigns and transfers to the Company all
right, title and interest in such works, including but not limited to
copyrights.  The term “Assigned  Invention Ideas ” means any
and all ideas, processes, trademarks, service marks, inventions, technology,
computer programs, original works of authorship, designs, formulas, discoveries,
patents, copyrights, and all improvements, rights, and claims related to the
foregoing that are conceived, developed, or reduced to practice or authored by
Consultant or Consultant’s agents, employees, or independent contractors, either
solely or jointly with others, resulting from the work performed by Consultant
under this Agreement or from the use of proprietary information, materials or
facilities of the Company during the period in which Consultant is retained by
the Company or its successor in business, under this Agreement or any previous
agreements or any extensions or renewals thereof. The Company acknowledges that
Consultant previously disclosed prior inventions to the company which Consultant
claimed was created by Consultant prior to the term of such Agreement and before
the period of employment of consultant as an employee of the Company prior
hereto (“Prior Invention”).  In this regard, the Company agrees that
the Prior Invention, as well as any updates thereto, are not property of the
Company and shall remain the sole and exclusive property of their
owners.

      


      (b)    In
the event any Assigned Invention Idea shall be determined by the Company to be
patentable or otherwise registerable, Consultant will assist the Company (at its
expense) in obtaining letters patent or other applicable registrations, and
Consultant will execute all documents and do all other things (including
testifying at the Company’s expense) necessary or proper to obtain letters
patent or other applicable registrations and to vest the Company with full title
to them.  Consultant’s obligation to assist the Company in obtaining
and enforcing patents, registrations or other rights for such inventions, shall
continue beyond the termination of the consulting and/or contracting
arrangement, but the Company shall compensate Consultant at a reasonable rate
after such termination for the time actually spent by Consultant at the
Company’s request for such assistance.

      


      (c)    Consultant
agrees to maintain adequate and current written records on the development of
all Assigned Invention Ideas and to disclose promptly to the Company all
Assigned Invention Ideas and relevant records, which records will remain the
sole property of the Company.

      


      7.    Noncompetition.
Consultant agrees that, during the term of this Agreement, he shall not engage
in any commercial activities or endeavors that are in direct competition with
the Company.

      


      8.    Nonsolicitation.  Consultant
agrees that during the term of this Agreement, he will not (a) directly or
indirectly solicit, induce, encourage or attempt to solicit or induce any
Company employee to discontinue his or her employment with the Company; (b)
usurp any opportunity of the Company that such Consultant becomes aware of
during the term of this Agreement or which is made available to the Consultant
on the basis of Consultant’s relationship with the Company; or (c) directly or
indirectly interfere with, solicit, induce or attempt to influence any person or
business that is an account, customer or client of the Company for the purpose
or with the result of adversely impacting the Company’s relationship with the
account, customer or client.

      


      9.    Independent
Contractor.  Consultant agrees, acknowledges and understands
that:

      


      (a)    Consultant
shall act in the capacity of an independent contractor with respect to the
Company.  Consultant shall not have any authority to enter into
contracts or binding commitments in the name or on behalf of the
Company.  Consultant will not use the Company’s logo or marks without
prior written approval, and then such use shall be only for the benefit of the
Company and at the direction of the Company.  Consultant shall not be,
nor represent itself as being, an agent of the Company, and shall not be, nor
represent itself as being, authorized to bind the Company.

      


      (b)    Consultant
shall not be an employee of the Company and shall not participate in any
employee benefit plans or group insurance plans or programs (including, but not
limited to salary, bonus or incentive plans, or plans pertaining to retirement,
deferred savings, disability, medical or dental) regardless of whether
Consultant is classified as an employee for any other purpose or is otherwise
eligible to participate pursuant to the terms of such plans.  The
exclusion of Consultant and his employees, if any, from benefit programs
maintained by the Company is a material component of the terms of compensation
negotiated by the parties, and is not premised on Consultant’s status as a
non-employee with respect to the Company.  To the extent that
Consultant may become eligible for any benefit programs maintained by the
Company (regardless of timing or reason for eligibility), Consultant hereby
waives his right to participate in the programs and will indemnify and hold the
Company harmless from any claim by Consultant or any of Consultant’s employees
against the Company for benefits pursuant to any of the Company’s employee
benefit plans.

      


      (c)    Consultant
understands and agrees that consistent with his independent contractor status,
neither he nor his employees, if any, will apply for any government-sponsored
benefits intended only for employees of the Company, including, but not limited
to, unemployment benefits and all such benefits will be provided solely by or
through Consultant. Consultant is solely responsible for all taxes,
withholdings, and other similar statutory obligations, including, but not
limited to, Workers’ Compensation, Unemployment or State Disability Insurance
for Consultant and/or his employees; and Consultant agrees to defend, indemnify
and hold Company harmless from any and all claims made by any entity on account
of an alleged failure by Consultant to satisfy any such tax or withholding
obligations.

      


      10.    Consultant’s
Representations.  Consultant agrees, represents and warrants
that:

      


      (a)    Consultant’s
performance of the Consulting Services or of any term of this Agreement will not
breach any agreement or understanding that Consultant has with any other person
or entity and that there is no other contract or duty now in existence
inconsistent with the terms of this Agreement;

      


      (b)    During
the term of this Agreement, Consultant shall not be bound by any agreement, nor
assume any obligation, which would in any way be inconsistent with the
Consulting Services to be performed by Consultant under this
Agreement;

      


      (c)    In
performing the Consulting Services, Consultant will not use any confidential or
proprietary information of any other person or entity or infringe the
intellectual property rights (including, without limitation, patent, copyright,
trademark or trade secret rights) of any other person or entity nor will
Consultant disclose to the Company, or bring onto the Company’s premises, or
induce the Company to use any confidential information of any person or entity
other than the Company or Consultant;

      


      (d)    During
the term of this Agreement, Consultant will not disclose to the Company, or use,
or induce the Company to use, any proprietary information or trade secrets of
others.  Consultant represents and warrants that Consultant has
returned all property and confidential information belonging to all prior
entities for whom Consultant has provided services, including, without
limitation, all files, records, documents, laboratory notebooks, drawings,
prototypes, plans, specifications, computer disks, sources codes, manuals,
books, forms, receipts, notes, reports, memoranda, studies, data, calculations,
recordings, catalogues, compilations of information, correspondence, and all
copies, abstracts, and summaries of the foregoing, instruments, tools, and
equipment, and all other physical items related to the business of the prior
entities.  Consultant further represents and warrants that
Consultant’s performance of the terms of this Agreement will not breach any
agreement to keep in confidence proprietary information acquired by Consultant
in confidence or in trust prior to or concurrent with this Agreement with the
Company.  Consultant has not entered into, and agrees not to enter
into, any oral or written agreement in conflict with this one;

      


      (e)    Consultant
will abide by all applicable laws and the Company’s safety rules in the course
of performing the Consulting Services; and

      


      (f)    Consultant
will not use or retain any other individual(s) or employee(s) in performing
services for the Company.

       

       11.    Indemnification.  Consultant
will defend, indemnify and hold the Company harmless against any and all losses,
liabilities, damages, claims, demands, suits, costs and expenses (including,
without limitation, reasonable attorneys’ fees and court costs) arising or
resulting, directly or indirectly, from any failure (alleged or actual) by
Consultant to satisfy any of tax or withholding obligations resulting from his
services to the Company. Nothing in this Agreement is intended or shall be a
waiver of the indemnification provided in that Indemnification Agreement dated
September 19, 2005 or any amendments or subsequent indemnification agreements
entered into between Company and Employee (“Indemnification
Agreement”).

      


      The
protections and provisions of the Indemnification Agreement shall extend to
those services provided by Consultant hereunder.

      


      12.    Miscellaneous
Provisions.

      


      (a)    Any
dispute in the meaning, effect or validity of this Agreement shall be resolved
in accordance with the laws of the State of California without regard to the
conflict of laws provisions thereof.  All parties hereto further agree
that any dispute between them may be determined only by a state or federal court
of competent jurisdiction in Los Angeles County, California, and all parties
hereby consent to venue and jurisdiction in that forum, based on the fact that
this Agreement has been made and executed in that county, and will be at least
partially performed there.

      


      (b)    If
one or more provisions of this Agreement are held to be illegal or
unenforceable, such illegal or unenforceable portion(s) shall be limited or
excluded from this Agreement to the minimum extent required and the balance of
the Agreement shall be interpreted as if such portion(s) were so limited or
excluded and shall be enforceable in accordance with its terms.

      


      (c)    This
Agreement shall be binding upon, and inure to the benefit of, the parties hereto
and their respective heirs, successors and assigns; provided, however, that this
Agreement and its rights and obligations are not assignable by Consultants
without the Company’s prior written consent.

      


      (d)    Any
notice required under this Agreement shall be deemed effectively given (i) upon
personal delivery to the party to be notified, (ii) when sent by confirmed
facsimile or electronic mail if sent during normal business hours of the
recipient (if not sent during normal business hours, then on the next business
day), (iii) three (3) days after having been sent by registered or certified
mail, return receipt requested, postage prepaid, if sent within the United
States (but seven (7) days after having been sent by similar mail service if
sent from, or to, an address outside the United States) or (iv) one (1) day
after deposit with a nationally recognized overnight courier, specifying next
day delivery, with written verification of receipt.  All such notices
shall be sent to the party entitled to such notice at the address indicated
below such party’s signature line on this Agreement or at such other address as
such party may designate by ten (10) days advance written notice under this
section to all other parties to this Agreement.

      


      (e)    This
Agreement contains the entire understanding of the parties regarding its subject
matter and supersedes all prior understandings or agreements between the parties
with regard to its subject matter, except with respect to agreements
incorporated by reference in this Agreement or specifically deemed not to be
modified by this Agreement (including the Prior Confidentiality
Agreement).  This Agreement can only be modified by a subsequent
written agreement executed by both parties.

      


      (f)    This
Agreement may be signed in counterparts, each of which shall be deemed an
original.

      


      


      


      


      SIGNATURES
ON NEXT PAGE


      
        
           


        

        
           


          
          

        

        
           


        

      


       

      


      IN WITNESS WHEREOF, this
Consulting Agreement is entered into on the date first set forth
above.           

    

     

     

    
      	 COMPANY:	CONSULTANT:
	 U.S. Auto
      Parts Network, Inc. 	 
	 	 	 
	 	 	 
	 By:	/s/
      SHANE EVANGELIST	/s/
      MICHAEL J. MCCLANE
	 Name:	Shane
      Evangelist 	Address:
       ******************
	 Title:   	Chief Executive
      Officer	Fax No.: 
      *******************
	 	 	E-mail: 
      ********************