Consulting Agreement by and between Pure Vanilla eXchange, Inc. and NG Outsourcing, Inc. CONSULTING AGREEMENT
Exhibit
6.01
Consulting
Agreement by and between Pure Vanilla eXchange, Inc.
and
NG Outsourcing, Inc.
This
Agreement is made by and between NG Outsourcing, Inc., a New York corporation;
having an address at 00 Xxxxx Xx, Xxxxx 00X, Xxx Xxxx, XX 00000, ("Consultant")
and
Pure Vanilla Exchange, Inc., a Nevada corporation (the “Company”).
1. Retention
as Consultant.
The
Company hereby retains Consultant and Consultant hereby accepts such engagement
and agrees to perform and to cause its employees to perform the services for
the
Company as hereinafter set forth. During the Term hereof, Consultant shall
provide the Company with its employees who will perform the services that would
ordinarily be provided by the president of a corporation engaged in businesses
similar to that of the Company. The services to be performed by Consultant’s
employees shall include, but are not necessarily limited to, supervising and
managing the Company’s operations, participating in the Company’s financial and
business planning, providing the Company’s senior management with advice
regarding its financial and business affairs, obtaining and assisting the
Company’s management to obtain meetings with financial institutions, investors
and potential investors, and participating in those meetings. Consultant shall
ensure that its employees perform their duties in a diligent, effective, and
loyal manner. Should Consultant so desire, the Company shall provide
Consultant’s employees with adequate work space and administrative support at
the Company's principal executive offices as are reasonably necessary for
carrying out the functions to be performed pursuant to this Agreement. . The
services to be rendered by Consultant under this Agreement shall initially
be
performed by Xxxxxxx Xxxxxxxxxx (“Xxxxxxxxxx”).
Consultant shall have the right to designate another person to render those
services, but the Company shall have the right to terminate this Agreement,
without further obligation to Consultant, if such other person is not acceptable
to the Company, in its sole discretion. Consultant shall provide the services
of
its designated employee for an aggregate of at least 40 working hours per week
and for such longer periods are necessary in order to satisfactorily render
the
services described above.
2. Compensation.
(a) Consultant
shall be compensated by the Company for all services to be rendered pursuant
to
this Agreement by the payment of consulting fees in the amount of $20,000 per
month.
(b) The
Company shall reimburse Consultant for the reasonable out-of-pocket expenses
incurred by Consultant’s employees in performing consulting activities for the
Company hereunder, upon the presentation, within 30 days after incurring such
expenses, of vouchers, receipts, and such other evidence of expenses incurred
as
shall be reasonably required by the Company.
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(c) Consultant
shall also receive, and shall distribute to those of its employees who render
services to the Company whom it shall select, a stock grant entitling Consultant
or those employees to purchase up to 125,000 shares of the Company’s $.01 par
value common stock, at a purchase price of $0.01 per share. Such stock shall
vest at signing of this agreement , provided that on such vesting date (a)
this
Agreement shall not have been terminated and (b) the Company shall not have
the
right to terminate this Agreement. The terms and conditions of such options
shall be as set forth on Exhibit A to this Agreement.
3. Term.
The
term of this Agreement shall be from January 1, 2006, through June 30, 2006.
This Agreement is also subject to earlier termination by the Company upon the
occurrence of any of the following events:
(a) A
breach
by Consultant of any material provision of this Agreement;
(b) Consultant's
or any of its employees’ failure to perform adequately any of the duties
required of Consultant hereunder because of incompetence, lack of expertise,
insubordination, dishonesty, negligence or use of alcohol or drugs;
(c) Death
or
disability of Schuhbauer, or the resignation of Schuhbauer as an employee of
Consultant.
4. Non-Disclosure;
Non-Competition
(a) Proprietary
Information.
Neither
Consultant nor any employee of Consultant will, during the period of this
Agreement or at any time thereafter, regardless of the reason for the cessation
of this Agreement: i)
use any
Confidential Information for its, his or her own benefit or for the benefit
of
any person or entity other than the Company; ii)
disclose
to any person or entity any Confidential Information; or iii)
remove
from the Company 's premises or make copies of any Confidential Information,
in
any form; except, in each case, as may be required within the scope of the
performance of Consultant's duties under and during the term of this
Agreement.
Upon
termination of this Agreement, or at any such time as the Company may request,
Consultant and each of its employees will deliver to the Company all copies
in
its, his or her possession or under its, his or her control of any Confidential
Information, in any form. Except on behalf of the Company, neither Consultant
nor any of its employees will at any time assert any rights in or with respect
to any Confidential Information.
For
purposes of this Agreement, "Confidential
Information"
means
any trade secrets and all technical, research, operational, manufacturing,
marketing, sales and financial policies, plans or information of the Company
or
of any vendor, supplier, distributor or customer of the Company, regardless
of
how acquired or developed by the Company or any such vendor, supplier,
distributor or customer, concerning any of their respective businesses.
Confidential Information does not include information, knowledge or data which
Consultant or such employee can prove was in its, his or her possession prior
to
the commencement of this Agreement or information, knowledge or data which
was
or is in the public domain by reason other than the wrongful acts of Consultant
or any such employee.
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(b) Developments.
Consultant agrees and shall cause each of its employees to agree that all
products, processes, know-how, inventions or devices, or any improvements to
any
of the foregoing whether patentable or not ("Inventions"), discovered or
developed during the course of this Agreement which are (1) related to the
Company's business;(2) in the course of development by the Company; or (3)
made
with the use of the Company's time, materials or facilities, shall belong to
the
Company. Consultant hereby assigns and transfers, and Consultant shall cause
each of its employees to assign and transfer to the Company all right, title
and
interest to any and all such Inventions. Consultant agrees and agrees to cause
each of its employees to promptly to disclose to the Company all such Inventions
and to execute such instruments and assignments and to take all such other
action, at the Company 's expense, as may be necessary or desirable to vest
title in such Inventions in the Company or to obtain letters patent and
copyrights for the benefit of the Company.
(c) Non-Competition.
During
the period of this Agreement and for 24 months thereafter, Consultant will
not,
and Consultant will not permit any of its employees, for itself, himself or
herself or on behalf of any other person or entity, to compete with the business
then done or intended to be done by the Company in any way, including calling
upon any customer of the Company, for the purpose of soliciting or providing
to
such customer any products or services which are the same as or similar to
those
provided or intended to be provided by the Company. Customers of the Company
shall include customers of the Company existing upon the termination of this
Agreement, all former customers of the Company and all potential customers
contacted or solicited by the Company during the period of this
Agreement.
(d) Limitation
of Scope.
If any
restriction set forth in this paragraph is found by any court of competent
jurisdiction to be unenforceable because it extends for too long a period of
time or over too great a range of activities or in too broad a geographic area,
it shall be interpreted to extend only over the maximum period of time, range
of
activities or geographic area as to which it may be enforceable.
(e) Injunctive
Relief.
In the
event of a breach or threatened breach of any of the terms of this Agreement,
the Company shall be entitled to an injunction restraining Consultant and its
employees from committing any breach of this Agreement without showing or
proving any actual damages and without diminishing any other right or remedy
which the Company may have at law or in equity to enforce the provisions of
this
Agreement. Consultant waives and shall cause its employees to waive any right
it, he or she may have to require the Company to post a bond or other security
with respect to obtaining or continuing any injunction or temporary restraining
order, releases the Company and its officers and directors from and waives
any
claim for damages against them which it, he or she may have with respect to
the
Company's obtaining any injunction or restraining order pursuant to this
Agreement, and waives any claim that the Company has an adequate remedy at
law.
(f) Employee
Agreements.
Consultant shall cause each of its employees who render services for the benefit
of the Company pursuant to this Agreement to enter into such agreements
embodying the foregoing terms as the Company may reasonably request. The Company
shall cause Schuhbauer to execute this Agreement for the purpose of agreeing
to
the provisions of this Section 4.
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5. Relationship.
Consultant and the Company are and shall be independent contractors in their
relationship with each other and neither of them nor any employee of Consultant
is nor shall be considered an agent, employee, or legal representative of the
other for federal or state tax purposes or for any other purposes whatsoever.
Neither Consultant nor any of its employees has any express or implied authority
to assume or create any obligation or responsibility on behalf of the Company
or
to bind the Company in any way. Consultant agrees to indemnify, defend and
hold
the Company harmless from and against all claims, damages, or liabilities as
a
result of its or any of its employees’ breach of this Paragraph. Consultant
further acknowledges that none of its employees shall be entitled to receive
any
insurance coverage or other fringe benefits that the Company customarily
provides to its full-time employees, and that no withholding, FICA or other
taxes will be paid or withheld by the Company on his or her behalf, and that
all
such obligations are the obligations of Consultant..
6. Arbitration.
In the
event any dispute shall arise under this Agreement, it shall be submitted to
arbitration in New York County, New York in accordance with the rules then
pertaining of the American Arbitration Association with respect to commercial
disputes. Judgment upon any resulting award, including an award of specific
performance or injunctive relief may, after its rendering, be entered in any
court of competent jurisdiction by any party. Notwithstanding the foregoing,
the
Company may maintain an action for injunctive relief in a court of appropriate
jurisdiction with respect to any breach of Paragraphs 4 and 5, pending the
resolution of those issues by arbitration.
7. General
Provisions.
(a) Notices.
Any
notice required or desired to be given hereunder shall be effective if in
writing and delivered personally or by certified mail, postage prepaid and
return receipt requested, to a party hereto at the address for such party set
forth herein or to such other address as a party may specify by written notice
to the other party similarly given, and shall be effective when mailed or,
if
delivered by hand, when received.
(b) Benefit.
This
Agreement and the rights and obligations contained herein shall be binding
upon
and inure to the benefit of the Company, its successors and assigns, and upon
Consultant, his/her legal representatives, heirs and distributees.
(c) Waiver.
The
waiver by either party of a breach of any provision of this Agreement shall
not
operate as or be construed as a waiver of any subsequent breach.
(d) Entire
Agreement.
This
Agreement contains the entire agreement between the parties relating to the
subject matter hereof and may not be altered or amended except by an instrument
in writing signed by both parties hereto.
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(e) Severability.
The
invalidity or unenforceability of a particular provision hereof shall not affect
the other provisions of this Agreement, and it shall be construed in all
respects as if such invalid or unenforceable provision were
omitted.
(f) Applicable
Law.
This
Agreement shall be construed and enforced in accordance with the laws of the
State of New York, and Consultant hereby consents to the jurisdiction of the
appropriate courts of the State of New York with respect to any disputes
relating to this Agreement; provided, however, that the arbitration provisions
of Paragraph 6 shall continue to be enforceable.
(g) Headings.
The
headings contained herein are inserted for convenience only and do not
constitute a part of this Agreement.
(h) Counterparts.
This
Agreement may be executed in one or more counterparts, each one of which shall
be deemed an original instrument and all of which together shall constitute
one
and the same document.
(i) Effect
of Termination.
Unless
otherwise specifically agreed to in writing or they expire by their own terms,
the terms of Paragraphs 4 and 5 hereof shall survive any termination,
cancellation, repudiation, rescission or expiration of this Agreement and under
such circumstances, the Company may continue to enforce such terms as if this
Agreement were otherwise in full force and effect.
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
January 1, 2006.
|
NG
Outsourcing, Inc.
|
Pure
Vanilla Exchange, Inc.
|
|
By:
/s/ Xxxxxxx Xxxxxxxxxx
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By:
/s/Xxxxxx Xxxxxx
|
|
Name:
Xxxxxxx Xxxxxxxxxx
|
Name:
Xxxxxx Xxxxxx
|
|
Title:
President
|
Title:
President
|
For
the
purposes of agreeing to be
bound
by
the provisions of Section 4:
/s/
Xxxxxxx
Xxxxxxxxxx
Xxxxxxx
Xxxxxxxxxx
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