EXHIBIT 10.16
CONSULTING AGREEMENT
DATED OCTOBER 7, 2008
WITH NUVISION HOLDINGS, LLC
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT ("Agreement") dated as of the 7th day of
October, 2008 by and between Nu Vision Holdings LLC ("Consultant") and Organic
Sales And Marketing, Inc., a Delaware corporation (the "Company").
WHEREAS, the Company, sells and markets a wide variety of organic products
primarily in the lawn and garden industry and other types of products with
organic origin.
WHEREAS, Consultant is an LLC duly formed under the laws of the State of
New York.
WHEREAS, Consultant has been performing services for the Company for more
than one year prior to the date of this Agreement without compensation.
WHEREAS, the Company desires to obtain Consultant's business and financial
consulting services in connection with the Company's affairs, and Consultant is
willing to undertake to provide such services as hereinafter fully set forth:
WHEREAS, the Company and Consultant desire to enter into this Agreement to
reflect the services, obligations, rights and responsibilities of the parties in
connection with the operation of the Company and its dealings with the
investment community.
NOW THEREFORE, the Company and Consultant agree as follows:
1. Services: Consultant shall provide to the Company consulting services
in connection with the Company's business as more particularly described below:
a) Aid the Company in identifying and retaining an appropriate investor
relations firm to work with the Company. This would include meeting with,
interviewing via phone or in person and assessing the merits of all potential
candidates. Consultant will field all calls received by current shareholders or
potential shareholders until such a firm is retained. Consultant will educate
and update individuals and institutions regarding the Company and current events
impacting the Company.
b) Act as a liaison between the Company and the investment community (Wall
Street). Introduce the company to Market Makers, Brokerage Firms and Registered
Representatives.
c) Aid the Company in identifying and retaining an appropriate public
relations firm to work with the Company. This would include meeting with,
interviewing via telephone or in person and assessing the merits of all
potential candidates. Consultant will aid the Company in preparing press
releases until a fiu i is retained. All releases will be submitted to counsel by
the Company for approval prior to release.
d) Aid the Company in assessing its capital requirements. Advise as to the
financing options available and the market perception of such options as they
pertain to the Company. Advise to the timing and potential source of any such
financing.
e) Identify and review potential business opportunities. This would
include the review of opportunities identified by the Company.
f) Advise the Company regarding the hiring of key personnel. This would
include interviewing potential candidates and aiding the company in the creation
of the appropriate compensation packages.
g) Offer general business advice to the Company regarding business
strategies, posturing, review and negotiation of contracts etc.
2. Provision of Service by Consultant's Affiliates: Consultant may cause
certain of the Services to be provided by "Affiliates" (as hereinafter defined).
That the Services may be provided by Affiliates and their personnel shall not
increase the "Service Fee" (as hereinafter defined) and Consultant shall remain
liable for the performance of its Services by its Affiliates as if Consultant
performed such Services directly. "Affiliate" shall mean as to any person or
entity, any other person or entity that directly or indirectly controls, or is
under common control with, or is controlled by, such person or entity.
3. Service Fee: Consultant shall receive payment for the Services,
rendered by it during the term hereof in the form of a maximum of 450,000 shares
(the "Shares") of restricted stock. The Shares shall be restricted but
Consultant may register said Shares on any appropriate filing form at
Consultant's expense at any time, pursuant to the Securities Act of 1933, as
amended. At the Company's discretion, Consultant may register said Shares when
and if the Company files a future registration statement. Consultant shall not
be obligated in any way or under any circumstances to advance funds for the
costs or expenses of the Company's operations or obligations. Out of pocket
costs exceeding one hundred dollars, including travel expenses, incurred by
consultant on the Company's behalf shall be reimbursed by the Company provided
consultant obtains the prior consent of the Company.
Consultant's compensation shall be payable as follows:
a) For the Company's fiscal year ended September 30, 2009, Consultant
shall receive 300,000 shares of the Company's common stock on commencement date.
b) For the Company's fiscal year ended September 30, 2009, Consultant
shall receive 150,000 shares of the Company's common stock on January 1, 2009.
c) The Company agrees not to take any action to dilute the Consultant's
ownership interest in the Company represented by the shares to be paid to it
hereunder unless the other current shareholders and/or officers are similarly
diluted. However, stock, stock options, and/or warrants may be allocated if
earned to any individual or entity and this provision shall not be applicable to
such securities.
4. Standard of Care: Consultant shall provide the Services during the term
of this Agreement in a diligent, professional manner. Consultant shall make
available to the Company the full benefit of its judgment, experience and
advice. It shall be the responsibility of both parties to make certain not to
engage in conduct violative of Federal or state securities laws. Nothing herein
shall be construed to require the Consultant to work exclusively for the Company
or to perform its services for the Company on a full time basis. The Company
acknowledges and is aware that the Consultant has, or may have, various other
clients and/or consulting arrangements with such clients. Consultant agrees that
it will not, during the term of this agreement, perform consulting services for
any entity which directly competes with the Company.
5. Personnel: Consultant shall employ personnel of Consultant or its
Affiliates as may be necessary in order for Consultant to perform the Services.
Such employment, if applicable, shall be at the expense of Consultant.
6. Term: a) Although Consultant has been performing some services prior to
this Agreement the Company engages the services of the Consultant and the
Consultant accepts such engagement upon the terms and conditions herein set
forth for a term commencing as of October 7, 2008 and terminating on April 7,
2009 ("Termination Date").
b) Unless otherwise mutually agreed upon in writing, any continuance of
Consultant's services after the Termination Date of this Agreement shall
constitute an engagement at will and may be terminated at any time by either
party upon the delivery of written notice thereof to the other party. Any such
continuing services by the Consultant shall be upon the terms and conditions as
set forth herein except as to the service fee and the payment thereof which will
have to be mutually agreed upon between the parties.
7. Indemnity: a) The Company shall indemnify and hold Consultant free and
harmless from any liability, loss, cost, expense, damage, or injury that
Consultant may suffer as a result of its performance or failure of performance
or any of the Company's obligations under this Agreement.
b) Consultant shall indemnify and hold the Company free and harmless from
any liability, loss, cost, expense, damage, or injury that the Company may
suffer as a result of
the performance or failure of performance of any of Consultant's obligations
under this Agreement.
8. Confidentiality: Consultant acknowledges and agrees that this Agreement
creates a confidential relationship between Consultant and the Company during
the term of this Agreement and further agrees as follows:
a) Confidential Information shall mean: any information, materials,
agreements and documents regarding the business and operations of the Company,
including but not limited to financial statements and supporting data, business
plans, forecasts and projections, and information concerning concepts, current
and proposed products and product lines, advertising, promotion, customers,
suppliers, licenses, affiliates, distributors, contractors, employees and
management, which may be provided, in writing or orally, by the Company to the
Consultant in the course of the discussions or dealings between the parties. The
term "Confidential Information," however, does not include information (i) which
is generally available to the public through no wrongful act of the Consultant
receiving Confidential Information, (ii) which is already lawfully in the
possession' of the Consultant and not subject to an existing agreement of
confidentiality between the parties or (iii) which is received from a third
party without restriction and without breach of this Agreement.
b) Consultant recognizes and acknowledges that in the course of the
discussions and negotiations relating to this Agreement, it may have obtained or
may obtain Confidential Information pertaining to the Company. Consultant
recognizes that such information is unavailable to the others and that the
disclosure thereof to persons not authorized by the Company to receive such
information would seriously and adversely affect the business and operations of
the Company. Consultant therefore, covenants and agrees: (i) to keep the
Confidential Information of the Company strictly confidential and secret and to
hold all such information now possessed or hereafter obtained by it in a
fiduciary capacity solely for the benefit of the Company; (ii) to not use any
Confidential Information for any purpose except for the purpose of evaluating
the Company or for dissuasions with the Company regarding the Company, and not
for the purpose of any competitive advantage; (iii) not to disclose to others
any such Confidential Information except as provided herein; and (iv) to use its
best efforts and exercise utmost diligence to protect and safeguard the
confidentiality and secrecy of all such Confidential Information.
c) (i) Dissemination of the Confidential Information by the Consultant
shall be limited to those employees and other representative or agents of the
Consultant whose duties justify their need to know such information, and where
the circumstances are such that such dissemination would not violate securities
law.
(ii) In the event that the Consultant is required or becomes legally
compelled to disclose any of the Confidential Information of the Company or that
discussions or negotiations are taking place between the parties, the Consultant
agrees that it will furnish only that portion of such Confidential Information
and other information which it is
legally required to disclose, and shall use its best efforts to obligate any
person or entity to whom or which such Confidential Information is furnished to
maintain the confidentiality thereof.
(iii) Promptly upon any request by the Company, the Consultant shall
return to the Company all written material furnished to the Consultant by or on
behalf of the Company pursuant hereto including, without limitation all
financial statements, memoranda, notes, records and/or any other documents
whatsoever, and the Consultant will not retain any copies, extracts or other
reproduction of same, in whole or in part. All documents, notes, memoranda and
other writings whatsoever prepared by or for the Company based on the
Confidential Information shall be destroyed and the Consultant will certify in
writing to the Company that such destruction has occurred.
d) In the event of a breach by the Consultant of any of the obligations
herein contained the Consultant acknowledges that the Company will not have
adequate remedy at law and shall be entitled to seek equitable and injunctive
relief to restrain violation of the provisions herein. Nothing herein shall be
construed as prohibiting the Company from pursuing any other remedies available
to it from such breach, including the recovery of damages.
9. Miscellaneous:
a) No Waivers. No failure or delay on the part of any party in exercising
any right, power or privilege hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise thereof preclude any other or future
exercise thereof or the exercise of any other right, power or privilege.
b) No Assignment. Neither party to this Agreement may assign its rights or
obligations hereunder without the written consent of the other party hereto.
c) Amendments. Any amendment, supplement or modification of or to any
provision of this Agreement, any waiver of any provision of this Agreement, and
any consent to any departure from the terms of any provisions to this Agreement
shall be made in writing, signed by the parties hereto, and shall be effective
only in the specific instance and for the specific purpose of which made or
given.
d.) Notices. All notices, demands, statements and communications required
or desired to be made hereunder shall be in writing and shall be hand delivered
or sent by responsible overnight carrier or registered or certified mail, return
receipt requested, if intended for the Company, addressed to the Company at:
Organic Sales and Marketing, Inc.
000 Xxxxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx X. X. Xxxxxxxx
and if intended for Consultant, addressed to Consultant:
Nu Vision Holdings LLC
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx Xxxx, X.X. 00000
The date of the giving of any such notice shall be the date of its receipt
by its recipient.
e) Captions. The captions of this Agreement are inserted only for the
purpose of convenient reference and do not define, limit or prescribe the scope
or intent of this Agreement or any part thereof.
f) Governing Law. This Agreement shall be governed, and construed in
accordance with, the laws of the State of Massachusetts except that body of law
relating to choice of law.
g) Severability. In case any one or more of the provisions contained in
this Agreement should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
h) Entire Agreement. This Agreement integrates all the terms and
conditions mentioned herein or incidental hereto and supersedes all oral
negotiations and proper writings in respect to the subject matter hereof. In the
event of any conflict between the terms, conditions and provisions of this
Agreement and any such agreement, document or instrument, the terms, conditions
and provisions of this Agreement shall prevail.
10. Relationship: The relationship between the Company and the Consultant
created by the Agreement is that of independent contractor and nothing herein
shall be construed as creating a relationship of employer or employee or
principal or agent between the parties. Consultant agrees that it shall neither
act nor make any representation that it is authorized to act as an agent or
officer of the Company.
11. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same agreement.
Nu Vision Holdings LLC
By: /s/ Xxxx X. Xxxxxxxxx, Partner
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By: /s/ Xxxxxx X. Xxxxxxxxx, Partner
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Organic Sales and Marketing, Inc.
By: /s/ Xxxxxx X. X. Xxxxxxxx, CEO
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