Consulting Agreement by and between Pure Vanilla eXchange, Inc. and CDJP Holdings Corp CONSULTING AGREEMENT
Exhibit
1.09
Consulting
Agreement by and between Pure Vanilla eXchange, Inc.
and
CDJP Holdings Corp
This
Agreement is made by and between CDJP Holdings Corp., 20821 Dearborn,
Xxxxxxxxxx, XX 00000 ("Consultant")
and
Pure Vanilla eXchange, Inc. ("PVx"),
a
Nevada corporation with its principal offices located at 000 X. 00xx
Xxxxxx,
Xxx Xxxx, XX 00000
.
1. Retention
as Consultant.
PVx
hereby retains Consultant and Consultant hereby accepts such engagement and
agrees to perform the services for PVx as hereinafter set forth.
a. During
the term hereof, Consultant shall advise PVx with respect to its business and
the business, securities and financial affairs of NVS Entertainment, Inc.,
and
shall render such other consulting and advisory services as PVx and the
Consultant may agree. Such services shall be rendered by Xxxxx Xxxx or such
other person as the Consultant shall designate, provided that such other person
shall be acceptable to PVx, in its sole discretion. Consultant’s services shall
be rendered from the home or personal place of business of Mr. Xxxx.
Consultant’s personnel shall not be required to devote more than 19.9 hours to
the rendering of services hereunder in any week. The President of PVx shall
have
the authority to designate the person or persons to whom Consultant’s employees
shall report with respect to the consulting services assigned
hereunder.
b. During
the two (2) years following the date of this Agreement, Consultant shall be
entitled to designate one (1) person to serve as a director of PVx and its
parent corporation, NVS Entertainment, Inc. (“NVS”).
PVx
shall present the name of such person to the shareholders of PVx and to the
shareholders of such corporations NVS for election to their Boards of Directors
and, subject to his election as such, such person shall serve as a Directors
of
each such corporation during that two (2) year period. If any person designated
by Consultant shall resign or become unable to serve, Consultant shall have
the
right to designate a successor to such person to serve as a director of such
corporations for the remainder of such two (2) year period.
2. Term.
The
term of this Agreement shall be for the period (the "Initial
Period")
commencing as of the date first above written (the "Commencement
Date")
and
ending on the first anniversary thereof (the "Expiration
Date").
Prior
to the Expiration Date, the parties shall negotiate in good faith the extension
of this Agreement for an additional term of one (1) year (the ”Additional
Period”);
provided, however, that neither party shall have any liability or obligation
to
the other if the parties are unable to agree upon the terms of such extension
and that this Agreement shall be extended only if such agreement is reached.
The
period of time during which this Agreement is in effect (i.e.,
the
Initial Period and the Additional Period, if any) is referred to in this
Agreement as the "Consulting
Period".
This
Agreement is also subject to earlier termination as provided in Section 3.
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3.
Termination.
(a)
Termination
for Cause.
PVx may
terminate this Agreement only for cause. For purposes of this Agreement, PVx
shall have "cause" to terminate this Agreement if such termination shall be
the
result of the following actions by any person designated by Consultant to render
the services required of it hereunder to PVx:
(i) willfully
engaging in conduct which is materially injurious to PVx;
(ii) willful
fraud or material dishonesty in connection with his performance
hereunder;
(iii) deliberate
or intentional failure to substantially perform his duties hereunder that
results in material harm to PVx;
(iv)
conviction
for, or plea of nolo contendere to a charge of, commission of a felony;
or
(v)
continuous
and habitual failure to substantially perform his duties under this
Agreement.
If
PVx
determines that it is entitled to terminate this Agreement pursuant to the
preceding subsections (i), (ii), (iii) or (v), it shall give Consultant notice
of its intention to do so, and if such default shall be cured within thirty
(30)
days following the date of such notice, this Agreement shall not be terminated
as a result of such default. If the default is not cured within such thirty
(30)
day period, then this Agreement shall be terminated, without further action
by
PVx. Termination pursuant to the preceding subsection (iv) shall be effective
on
the giving of notice.
(b)
Termination
by Consultant.
Consultant shall have the right at any time to terminate this Agreement at
any
time, upon notice to PVx.
4.
Consequences
of Termination.
(a)
Without
Cause.
In the
event of a termination of this Agreement by PVx during the Consulting Period
other than for "cause" (as provided for in Section 3(a) hereof), PVx shall
pay
Consultant the consulting fee set forth in Section 5, for the remainder of
the
Consulting Period, in accordance with the timetable and schedule contemplated
for such payments, as though such termination had not occurred.
(b) Other
Termination.
In the
event that this Agreement is terminated (i) by PVx for "cause" (as provided
for
in Section 3(a) hereof),or (ii) by Consultant’s voluntary termination of this
Agreement or upon the death of Xxxxx Xxxx, the Company shall pay Consultant
any
earned but unpaid compensation for that portion of the Consulting Period during
which this Agreement was in effect, ending on the effective date of the
termination of this Agreement, and the Company shall have no further obligations
to Consultant.
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5. Compensation.
Consultant shall be compensated by PVx for all services to be rendered during
the Initial Period by the payment of consulting fees at the rate of Sixty
Thousand Dollars ($60,000) per year. Consultant shall be compensated by PVx
for
all services to be rendered during the Additional Period, if any, by the payment
of such consulting fees as the parties may agree. All consulting fees shall
be
payable in arrears not less frequently than monthly.
6. Non-Disclosure
(a) Proprietary
Information.
Consultant will not, 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 own benefit or for the benefit of any person
or
entity other than PVx; ii)
disclose
to any person or entity any Confidential Information; or iii)
remove
from PVx's premises or make copies of any Confidential Information, in any
form;
except, in each case, as may be required within the scope of Consultant's duties
during the term of this Agreement.
Upon
termination of this Agreement, or at any such time as PVx may request,
Consultant will deliver to PVx all copies in its possession or under its control
of any Confidential Information, in any form. Except on behalf of PVx,
Consultant will not 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 PVx or of any vendor, supplier,
distributor or customer of PVx, regardless of how acquired or developed by
PVx
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 can prove was in his possession prior to
the
commencement of this or information, knowledge or data which was or is in the
public domain by reason other than the wrongful acts of Consultant.
For
purposes of this Section 6, “Consultant” shall include each person designated by
Consultant to render services to PVx on its behalf, and Consultant shall require
each such person to execute a written agreement, expressly inuring to the
benefit of PVx, agreeing to be bound by this Section 6 as if such person was
a
party to this Agreement.
(b) Developments.
Consultant agrees 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 PVx 's business;(2) in the course of development by PVx; or (3)
made
with the use of PVx 's time, materials or facilities, shall belong to PVx.
Consultant hereby assigns and transfers to PVx all right, title and interest
to
any and all such Inventions. Consultant agrees promptly to disclose to PVx
all
such Inventions and to execute such instruments and assignments and to take
all
such other action, at PVx 's expense, as may be necessary or desirable to vest
title in such Inventions to PVx or to obtain letters patent and copyrights
for
the benefit of PVx.
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(c) Injunctive
Relief.
In the
event of a breach or threatened breach of any of the terms of this Agreement,
PVx shall be entitled to an injunction restraining Consultant from committing
any such breach without showing or proving any actual damages and without
diminishing any other right or remedy which PVx may have at law or in equity
to
enforce the provisions of this Agreement. Consultant waives any right it may
have to require PVx to post a bond or other security with respect to obtaining
or continuing any injunction or temporary restraining order, releases PVx and
its officers and directors from and waives any claim for damages against them
which it may have with respect to PVx 's obtaining any injunction or restraining
order pursuant to this Agreement, and waives any claim that PVx has an adequate
remedy at law.
7. Relationship.
Consultant and PVx are and shall be independent contractors in their
relationship with each other and neither is nor shall be considered an agent
or
legal representative of the other for federal or state tax purposes or for
any
other purposes whatsoever. No person designated by Consultant to render services
to PVx on its behalf shall be considered an employee of PVx. Neither Consultant
nor any of its employees has any express or implied authority to assume or
create any obligation or responsibility on behalf of PVx or to bind PVx in
any
way. Consultant agrees to indemnify, defend and hold PVx harmless from and
against all claims, damages, or liabilities as a result of his breach of this
Paragraph. Consultant further acknowledges that no person rendering services
to
PVx on its behalf shall be entitled to receive any insurance coverage or other
fringe benefits that PVx customarily provides to its full-time employees; and
that no withholding, FICA or other taxes will be paid or withheld by PVx on
behalf of such person.
8. 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,
PVx
may maintain an action for injunctive relief in a court of appropriate
jurisdiction with respect to any breach of Paragraph 4, pending the resolution
of those issues by arbitration.
9. 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 PVx, Consultant and their respective successors
and
assigns.
(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.
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(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.
(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 Section 8 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, PVx 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 this
9th
day of March 2006.
|
CDJP
HOLDINGS CORP.
|
PURE
VANILLA EXCHANGE, INC.
|
|
By:
/s/ Xxxxx
Xxxx
|
By:
/s/ Xxx
Xxxxxx
|
|
Xxxxx
Xxxx, President
|
Xxx
Xxxxxx, Treasurer
|
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