Landbank Group, Inc. CONSULTING, CONFIDENTIALITY AND PROPRIETARY RIGHTS AGREEMENT
EXHIBIT 10.1
Landbank
Group, Inc.
CONSULTING,
CONFIDENTIALITY AND PROPRIETARY RIGHTS AGREEMENT
This
Consulting, Confidentiality and Proprietary Rights Agreement ("Agreement")
is
entered into as of the 27th day of September, 2007 (the “Effective Date”) by and
between Landbank Group, Inc., a Delaware corporation (the “Company”), and Venor,
Inc. (“Consultant”).
WHEREAS,
the Company desires to engage Consultant to provide certain services as set
forth on Schedule attached hereto and as specified from time to time by the
Company.
NOW,
THEREFORE, in consideration of the foregoing and the mutual covenants and
conditions contained herein, the parties hereto agree as follows:
1. Engagement. The
Company hereby engages Consultant, using Xxxx Xxxxxxxxxxxx (the “Principal”) to
perform those duties set forth in the Schedule attached hereto and such other
duties as may be requested from time to time by the Chairman or Board of
Directors of the Company. Consultant hereby accepts such engagement upon the
terms and subject to conditions set forth in this Agreement.
2. Compensation. For
the services rendered by Consultant under this Agreement, the Company shall
pay
to Consultant the compensation specified in the Schedule, subject to the terms
and conditions set forth in this Agreement.
3. Term
and Survivability. The term of this Agreement shall be for a
period of six months from the Effective Date. Notwithstanding the
foregoing, Company may terminate this Agreement on or after thirty days (30)
of
providing written notice to Consultant and Consultant may terminate this
Agreement on or after thirty days (30) of providing written notice to
Company. In addition, this Agreement may be terminated if either
party materially fails to perform or comply with this Agreement or any material
provision hereof. Termination shall be effective five (5) days after notice
of
such material failure to perform or comply with this Agreement or any material
provision hereof to the defaulting party if the defaults have not been cured
within such five (5) day period. In the event that the Consultant is
required to provide any services whatsoever after the term of this Agreement,
the Consultant shall be prepaid $200 per hour for any time
spent. Upon termination of this Agreement the following sections of
this Agreement shall survive such termination: Sections 3, 5, 6, 7,
8, 10, 12 and 13.
4. Costs
and Expenses of Consultant’s Performance. Except as set forth on
the Schedule, all costs and expenses of Consultant’s performance hereunder shall
be borne by the Consultant.
5. Taxes. As
an independent contractor, Consultant acknowledges and agrees that it is solely
responsible for the payment of any taxes and/or assessments imposed on account
of the payment of compensation to, or the performance of services by Consultant
pursuant this Agreement, including, without limitation, any unemployment
insurance tax, federal and state income taxes, federal Social Security (FICA)
payments, and state disability insurance taxes. The Company shall not make
any
withholdings or payments of said taxes or assessments with respect to amounts
paid to Consultant hereunder; provided, however, that if required by law or
any
governmental agency, the Company shall withhold such taxes or assessments from
amounts due Consultant, and any such withholding shall be for Consultant's
account and shall not be reimbursed by the Company to Consultant. Consultant
expressly agrees to make all payments of such taxes, as and when the same may
become due and payable with respect to the compensation earned under this
Agreement.
6. Confidentiality. Consultant
agrees that Consultant will not, except when required by applicable law or
order
of a court, during the term of this Agreement or thereafter, disclose directly
or indirectly to any person or entity, or copy, reproduce or use, any Trade
Secrets (as defined below) or Confidential Information (as defined below) or
other information treated as confidential by the Company known, learned or
acquired by the Consultant during the period of the Consultant's engagement
by
the Company. For purposes of this Agreement, "Confidential
Information" shall mean any and all Trade Secrets, knowledge, data or know-how
of the Company, any of its affiliates or of third parties in the possession
of
the Company or any of its affiliates, and any nonpublic technical, training,
financial and/or business information treated as confidential by the Company
or
any of its affiliates, whether or not such information, knowledge, Trade Secret
or data was conceived, originated, discovered or developed by Consultant
hereunder. For purposes of this Agreement, "Trade Secrets" shall
include, without limitation, any formula, concept, pattern, processes, designs,
device, software, systems, list of customers, training manuals, marketing or
sales or service plans, business plans, marketing plans, financial information,
or compilation of information which is used in the Company's business or in
the
business of any of its affiliates. Any information of the Company or
any of its affiliates which is not readily available to the public shall be
considered to be a Trade Secret unless the Company advises Consultant in writing
otherwise. Consultant acknowledges that all of the Confidential
Information is proprietary to the Company and is a special, valuable and unique
asset of the business of the Company, and that Consultant's past, present and
future engagement by the Company has created, creates and will continue to
create a relationship of confidence and trust between the Consultant and the
Company with respect to the Confidential Information. Furthermore,
Consultant shall immediately notify the Company of any information which comes
to its attention which might indicate that there has been a loss of
confidentiality with respect to the Confidential Information. In such event,
Consultant shall take all reasonable steps within its power to limit the scope
of such loss.
7. Return
of the Company’s Proprietary Materials. Consultant agrees to
deliver promptly to the Company on termination of this Agreement for whatever
reason, or at any time the Company may so request, all documents,
records, artwork, designs, data, drawings, flowcharts, listings, models,
sketches, apparatus, notebooks, disks, notes, copies and similar repositories
of
Confidential Information and any other documents of a confidential nature
belonging to the Company, including all copies, summaries, records,
descriptions, modifications, drawings or adaptations of such materials which
Consultant may then possess or have under its control. Concurrently
with the return of such proprietary materials to the Company, Consultant agrees
to deliver to the Company such further agreements and assurances to ensure
the
confidentiality of proprietary materials. Consultant further agrees
that upon termination of this Agreement, Consultant's, employees, consultants,
agents or independent contractors shall not retain any document, data or other
material of any description containing any Confidential Information or
proprietary materials of the Company.
8. Assignment
of Proprietary Rights. Other than the Proprietary Rights listed
on the Schedule attached hereto, if any, Consultant hereby assigns and transfers
to the Company all right, title and interest that Consultant may have, if any,
in and to all Proprietary Rights (whether or not patentable or copyrightable)
made, conceived, developed, written or first reduced to practice by Consultant,
whether solely or jointly with others, during the period of Consultant's
engagement by the Company which relate in any manner to the actual or
anticipated business or research and development of the Company, or result
from
or are suggested by any task assigned to Consultant or by any of the work
Consultant has performed or may perform for the Company.
Consultant
acknowledges and agrees that the Company shall have all right, title and
interest in, among other items, all research information and all documentation
or manuals related thereto that Consultant develops or prepares for the Company
during the period of Consultant's engagement by the Company and that such work
by Consultant shall be work made for hire and that the Company shall be the
sole
author thereof for all purposes under applicable copyright and other
intellectual property laws. Other than the Proprietary Rights listed on the
Schedule attached hereto, Consultant represents and covenants to the Company
that there are no Proprietary Rights relating to the Company's business which
were made by Consultant prior to Consultant's engagement by the Company.
Consultant agrees promptly to disclose in writing to the Company all Proprietary
Rights in order to permit the Company to claim rights to which it may be
entitled under this Agreement. With respect to all Proprietary Rights
which are assigned to the Company pursuant to this Section 8, Consultant will
assist the Company in any reasonable manner to obtain for the Company's benefit
patents and copyrights thereon in any and all jurisdictions as may be designated
by the Company, and Consultant will execute, when requested, patent and
copyright applications and assignments thereof to the Company, or other persons
designated by the Company, and any other lawful documents deemed necessary
by
the Company to carry out the purposes of this Agreement. Consultant will further
assist the Company in every way to enforce any patents, copyrights and other
Proprietary Rights of the Company.
9. Trade
Secrets of Others. Consultant represents to the Company that its
performance of all the terms of this Agreement does not and will not breach
any
agreement to keep in confidence proprietary information or trade secrets
acquired by Consultant in confidence or in trust prior to its engagement by
the
Company, and Consultant will not disclose to the Company, or induce the Company
to use, any confidential or proprietary information or material belonging to
others. Consultant agrees not to enter into any agreement, either written or
oral, in conflict with this Agreement.
10. Other
Obligations. Consultant acknowledges that the Company, from time
to time, may have agreements with other persons which impose obligations or
restrictions on the Company regarding proprietary rights made or developed
during the course of work hereunder or regarding the confidential nature of
such
work. Consultant agrees to be bound by all such obligations and restrictions
and
to take all action necessary to discharge the obligations of the Company
hereunder.
11. Independent
Contractor. Consultant shall not be deemed to be an employee or
agent of the Company for any purpose whatsoever. Consultant shall have the
sole
and exclusive control over its employees, consultants or independent contractors
who provide services to the Company, and over the labor and employee relations
policies and policies relating to wages, hours, working conditions or other
conditions of its employees, consultants or independent
contractors.
12.
Non-Solicit. Consultant will not, during the term this Agreement and for
one year thereafter, directly or indirectly (whether as an owner, partner,
shareholder, agent, officer, director, employee, independent contractor,
consultant, or otherwise) with or through any individual or entity: (i) employ,
engage or solicit for employment any individual who is, or was at any time
after
the Effective Date of this Agreement for any reason, an employee of the Company,
or otherwise seek to adversely influence or alter such individual's relationship
with the Company; or (ii) solicit or encourage any individual or entity that
is,
or was after the Effective Date and immediately prior to the termination of
this
Agreement for any reason, a customer or vendor of the Company to terminate
or
otherwise alter his, her or its relationship with the Company or any of its
affiliates.
13.
Equitable Remedies. In the event of a breach or threatened
breach of the terms of this Agreement by Consultant, the parties hereto
acknowledge and agree that it would be difficult to measure the damage to the
Company from such breach, that injury to the Company from such breach would
be
impossible to calculate and that monetary damages would therefore be an
inadequate remedy for any breach. Accordingly, the Company, in addition to
any
and all other rights which may be available, shall have the right of specific
performance, injunctive relief and other appropriate equitable remedies to
restrain any such breach or threatened breach without showing or proving any
actual damage to the Company.
14.
Governing Law. This Agreement shall be governed, construed and
interpreted in accordance with the internal laws of the State of California.
In
the event a judicial proceeding is necessary, the sole forum for resolving
disputes arising under or relating to this Agreement are the Municipal and
Superior Courts for the County of Los Angeles, California or the Federal
District Court for the Central District of California and all related appellate
courts, and the parties hereby consent to the jurisdiction of such courts,
and
that venue shall be in Los Angeles County, California.
15. Entire
Agreement: Modifications and Amendments. The terms of this
Agreement are intended by the parties as a final expression of their agreement
with respect-to such terms as are included in this Agreement and may not be
contradicted by evidence of any prior or contemporaneous agreement. The Schedule
referred to in this Agreement is incorporated into this Agreement by this
reference. This Agreement may not be modified, changed or supplemented, nor
may
any obligations hereunder be waived or extensions of time for performance
granted, except by written instrument signed by the parties or by their agents
duly authorized in writing or as otherwise expressly permitted
herein.
16. Attorneys
Fees. Should any party institute any action or proceeding to
enforce this Agreement or any provision hereof, or for damages by reason of
any
alleged breach of this Agreement or of any provision hereof, or for a
declaration of rights hereunder, the prevailing party in any such action or
proceeding shall be entitled to receive from the other party all costs and
expenses, including reasonable attorneys' fees, incurred by the prevailing
party
in connection with such action or proceeding.
17.
Prohibition of Assignment. This Agreement and the rights,
duties and obligations hereunder may not be assigned or delegated by Consultant
without the prior written consent of the Company. Any assignment of rights
or
delegation of duties or obligations hereunder made without such prior written
consent shall be void and of no effect.
18. Binding
Effect: Successors and Assignment. This Agreement and the
provisions hereof shall be binding upon each of the parties, their successors
and permitted assigns.
19. Validity. This
Agreement is intended to be valid and enforceable in accordance with its terms
to the fullest extent permitted by law. If any provision of this Agreement
is
found to be invalid or unenforceable by any court of competent Jurisdiction,
the
invalidity or unenforceability of such provision shall not affect the validity
or enforceability of all the remaining provisions hereof.
20.
Notices. All notices and other communications hereunder shall
be in writing and, unless otherwise provided herein, shall be deemed duly given
if delivered personally or by telecopy or mailed by registered or certified
mail
(return receipt requested) or by Federal Express or other similar courier
service to the parties at the following addresses or (at such other address
for
the party as shall be specified by like notice)
(i) If
to the Company:
Landbank
Group, Inc.
0000
Xxxxxxxxxxx Xxx
Xxx
Xxxx, Xxxxxxxxxx
00000
Attn: Xxxx
Xxxxxxx,
(ii)
If
to the Consultant:
Venor,
Inc.
0000
Xxxx Xxxxxx
Xxxxxxx
Xxxxx, XX 00000
Attn:
Xxxx Xxxxxxxxxxxx
Phone:
(000) 000-0000
Any
such
notice, demand or other communication shall be deemed to have been given on
the
date personally delivered or as of the date mailed, as the case may
be.
IN
WITNESS WHEREOF, the parties hereto have executed this Consulting,
Confidentiality, and Proprietary Rights Agreement as of the Effective Date
written above.
Venor, Inc.
| By: /s/ Xxxx Xxxxxxxxxxxx |
|
|
Name:
Xxxx Xxxxxxxxxxxx
|
|
|
Title: Principal
|
Landbank Group, Inc.
| By: /s/ Xxxx Xxxxxxx |
|
|
Name:
|
|
|
Title:
|
Schedule
1. DUTIES
A. Financial
Duties required to maintain a public shell
|
§
|
Maintain
accurate books and records of the Company including
accounting.
|
|
§
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Oversee
reviews and audits.
|
|
§
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Timely
make appropriate and necessary
filings.
|
|
§
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Handle
all AP and AR related matters.
|
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§
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Shut
down operating activities.
|
|
§
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Oversee
tax matters.
|
|
§
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Oversee
legal matters as related to the operation of the
shell.
|
C.
Interim
President and Secretary Duties
|
§
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Serve
as interim President and Secretary.
|
|
§
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Perform
the duties as set forth under the Company’s
By-Laws.
|
2. SCHEDULE
AND COMITTMENT OF TIME:
If
at any
time during the performance of this contract any phases of the required tasks
appear to be impossible of execution or if any phase cannot be completed on
schedule, it is agreed that Consultant will notify Company within one (1) day
of
such determination. At the time of such notification Consultant shall
explain to Company why a particular task is impossible to complete and propose
alternative procedures for achieving the desired result.
3. REPORTING
SCHEDULE:
Consultant
shall report regularly, and not less frequent than once every month, to the
Company his progress on the tasks enumerated above.
4. COMPENSATION
AND PAYMENT TERMS:
From
the
Effective Date until November 30, 2007 the Consultant shall be paid at a rate
of
$5,000 per month. Thereafter, the Consultant shall be paid $4,000 per
month payable on the first business day of the month. In the event
the Consultant is requested to perform services outside the Duties required
to
maintain a public shell, the Consultant shall be paid at a rate of $200 per
hour
(“Hourly Services”). Hourly Services shall be pre-approved in
advanced by email from any member of the Board of Directors.
5 EXPENSES:
Company
agrees to reimburse Consultant for reasonably necessary travel, phone and office
expenses other then rent. However, should such expenses exceed $500 in any
given
calendar month; such expenses shall be pre-approved in advance by Company in
order to qualify to reimbursement. An email authorization by the Chairman of
Company shall be deemed a valid approval.
