EXHIBIT 6.1
CONSULTING AGREEMENT
This Agreement is made on June 25, 1999, between NURESCELL a Nevada
Corporation ("CLIENT"), with a principal place of business at 0000 Xxxxxxx
Xxxxxx, Xxxxx, Xxxxx 000, Xxxxxxx Xxxxx, XX 00000 and XX. XXXXX XXXX
("Consultant"), an independent contractor, with a principal place of business
at 000 Xxxx Xxxxxx, Xxx Xxxxxxxx, Xxxxxxxxxx 00000
1. TERM OF CONTRACT.
1.1 This Agreement will become effective upon execution and will
continue in affect for five (5) years with one five year
renewal Option unless otherwise terminated in accordance with
this Agreement. The Performance of Services shall be reviewed
annually.
2. SERVICES TO BE PERFORMED BY CONSULTANT.
2.2 SPECIFIC SERVICES. Consultant agrees to perform certain
services as hereinafter set forth, but including the following:
2.1.1 Marketing analysis and salability analysis of high
demand segments in the nuclear industry (commercial
power, uranium production and DOE nuclear facilities).
2.1.2 Development of product and material specifications
that can meet the demand of radiation shielding and
safety applications in nuclear power stations.
2.1.3 Formation of high-level industry committees to help
review the specifications.
2.1.4 Facilitation of DOE Grants and other funding
mechanisms to enable in-plant field trials and
NRC/LARA Approvals and Licenses.
2.1.5 Facilitation of endorsement of the products and
materials to the nuclear power industry.
2.1.6 Completion of sales of NURESCELL materials to the
power plant industry.
2.2 PURPOSE OF THE SERVICE. The service provided by Consultant and
his team will help NURESCELL to finalize the products and to
obtain quick access to key design and marketing information,
responsible management personnel and NRC officials that are
needed to develop and capture the application identified by
NURESCELL and Consultant in a cost-effective and timely
manner, the estimated $2 to $3 Billion Dollars per year
radiation shielding market in the nuclear industry.
2.3 METHOD OF PERFORMING SERVICES. Consultant will determine the
method, details, and means of performing the above-described
services; provided however, that Consultant shall, on at least
a monetary basis, prepare a detailed written report on the
Consultant's activities in connection with this Agreement.
Said report shall include all contacts made and a summary of
progress against committed performance of services.
2.4 STATUS OF CONSULTANT. Consultant enters into this Agreement,
and will remain throughout the term of this Agreement, as an
Independent Contractor. Consultant agrees that he is not and
will not become an employee, partner, agent or principal of
Client while this Agreement is in effect. Consultant agrees he
is not entitled to the rights or benefits afforded to Client's
employee, including disability or unemployment insurance,
worker's compensation, medical insurance, sick leave, or any
other employment benefit. Consultant is responsible for
providing, at his own expense, disability, unemployment, and
other insurance, worker's compensation, training, permits, and
licenses for himself and for his employees and subcontractors.
2.5 PAYMENT OF INCOME TAXES. Consultant is responsible for paying
when due all income taxes, including estimated taxes, incurred
as a result of the compensation paid by Client to Consultant
for services under this Agreement. On request, Consultant will
provide Client with proof of timely payment. Consultant agrees
to indemnify Client for any claims, costs, losses, fees,
penalties, interest, or damages suffered by Client resulting
from Consultant's failure to comply with this provision.
2.6 USE OF EMPLOYEES OR SUBCONTRACTORS. Consultant may, at
Consultant's own expense, use any employees or subcontractors
as Consultant deems necessary to perform
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the services required of Consultant by this Agreement. Client
may not control, direct, or supervise Consultant's employees
or subcontractors in the performance of those services.
3. COMPENSATION
3.1 COMPENSATION. Client agrees to pay Consultant for the services
set forth in Section 2 in the following manner:
3.1.1 NURESCELL Materials Sales -- 15% of the Net Sales
Revenue. Net is defined as Gross Sales minus cost of
NURESCELL Materials, Production & Transportation/
Delivery to Purchaser.
3.1.2 Demonstration Grants -- 10% of Xxxxx Xxxxx Value.
3.1.3 ALL Sales and/or Grant Agreements shall be
presented to NURESCELL for written pre-approval before
finalization of the Contract.
3.2 The COMPENSATION discussed above will be payable to Consultant
within 30 days from the receipt of payment to NURESCELL from
the contracts derived from Consultant's effort.
3.3 PAYMENT OUT OF POCKET EXPENSES. Consultant will be reimbursed
for actual expenses incurred (not to exceed $126,000.00 per
year) based upon a five year Agreement. NURESCELL must
pre-approve ALL expenses. Consultant will provide Client with
receipts for all expenses over $25.00
3.4 As additional compensation, Consultant shall be entitled to a
STOCK OPTION of 200,000 NURSCELL shares at $3.0 per share.
This Option may be exercised by Consultant upon consultant
forming a nuclear power committee with qualified power Plan
Managers etc. Said Option shall be approved by the Board of
Directors and NURESCELL.
3.3 LIMITATION OR COMPENSATION. Notwithstanding anything to the
contrary contained herein, should Consultant be terminated for
cause, all right to compensation shall forthwith cease. Should
the Agreement be terminated for any other reason, including
the agreed upon expiration date of the Agreement, then the
right to receive compensation shall be limited to Gross Sales
and or Grants (See Section 3.1) derived from
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existing contracts between NURESCELL and the Nuclear industry
which were derived directly from Consultant's efforts, but
shall not include renewals or extensions of any such
Agreements and shall not include any Agreements executed after
this consulting Agreement has been terminated.
4. OBLIGATIONS OF CONSULTANT
4.1 MINIMUM AMOUNT OF SERVICE. Consultant agrees to devote
substantial time to performing the above-described services.
4.2 NON-EXCLUSIVE RELATIONSHIP. Consultant may represent, perform
services for, and contract with as many additional clients,
persons, or companies as Consultant, in his sole discretion;
provided, however, during the term of this Agreement
Consultant shall not, directly or indirectly, either as an
employee, employer, consultant, agent, principal, partner,
stockholder, corporate officer, director, or in any other
individual or representative capacity, engage or participate
in any business that is in competition in any manner
whatsoever with the business of NURESCELL.
4.3 MATERIALS AND EQUIPMENT. Subject to information, samples and
technical assistance as needed to be obtained from Client,
Consultant will supply all materials, and equipment required
to perform the services under this Agreement.
4.4 WORKER'S COMPENSATION. Consultant agrees to provide worker's
compensation insurance for Consultant's employees and agents,
if any, and agrees to hold harmless and indemnify Client for
any and all claims arising out of any injury, disability or
death of any of Consultant's employees or agents.
4.5 GENERAL LIABILITY INSURANCE. Consultant agrees to hold
NURESCELL harmless for any negligent acts or omissions
committed by Consultant or Consultant's employees or agents
during the performance of any duties under this Agreement.
Consultant further agrees to indemnify and hold Client free
and harmless from any and all claims arising from any such
negligent act or omission.
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4.6 CONSULTANT'S QUALIFICATIONS. Consultant represents that he has
the qualifications and skills necessary to perform the
services under this Agreement in a competent, professional
manner, without the advice or direction of Client. This means
Consultant is able to fulfill the requirements of this
Agreement. Failure to perform all the services required under
this Agreement constitutes a material breach of the Agreement.
Consultant has complete and sole discretion for the manner
in which the work under this Agreement will be performed.
4.7 INDEMNITY. Consultant agrees to indemnify, defend, and hold
Client free and harmless from all claims, demands, losses,
costs, expenses, obligations, liabilities, damages,
recoveries, and deficiencies, including interest, penalties,
attorney's fees, and costs, that Client may incur as a result
of a breach by Consultant of any representation or Agreement
contained in this Agreement.
4.8 ASSIGNMENT. Neither this Agreement nor any duties or
obligations under this Agreement may be assigned by Consultant
without the prior written consent of Client.
5. OBLIGATIONS OF CLIENT.
5.1 COOPERATION OF CLIENT. Client agrees to comply with all
reasonable requests of Consultant necessary to the performance
of Consultant's duties under this Agreement.
5.2 ASSIGNMENT. Neither this Agreement nor any duties or
obligations under this Agreement may be assigned by Client
without the prior written consent of the Consultant.
6. TERMINATION OF AGREEMENT.
6.1 TERMINATION ON NOTICE. Notwithstanding any other provision of
this Agreement, either party may terminate this Agreement at
any time by giving sixty (60) days written notice to the other
party. Unless otherwise terminated as provided in this
agreement, this agreement will continue in force for 5 years
with an additional five year option and annual performance
reviews.
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6.2 TERMINATION ON OCCURRENCE OF STATED EVENTS. This Agreement
will terminate automatically on the occurrence of any of the
following events:
(a) Bankruptcy or insolvency of either party.
(b) Death of Consultant.
6.3 TERMINATION FOR DEFAULT. If either party defaults in the
performance of this Agreement or materially breaches any of
its provisions, the non-breaching party may terminate this
agreement by giving written notification to the breaching
party. Termination will take effect immediately on receipt of
notice by the breaching party or five days after mailing of
notice, whichever occurs first. For the purposes of this
paragraph, material breach of this Agreement includes, but is
not limited to, the following:
(a) Client's failure to pay Consultant any compensation due
within 30 days after written demand for payment.
(b) Consultant's failure to complete the services specified
in 2.1 of this Agreement.
(c) Consultant's material breach this Agreement or any
representation contained herein.
(d) Client's material breach of any representation or
agreement contained in this Agreement.
6.4 Either party may terminate this Agreement for the reasons
stated in 6.3 by giving forty-five (45) days written notice of
termination to the other, but without prejudice to any other
remedy to which either party may be entitled either at law, in
equity, or under this Agreement.
6.5 NURESCELL reserves the right to terminate this Agreement not
less than six (6) months after Consultant suffers any physical
or mental disability that would prevent the performance of his
duties under this Agreement. Such a termination shall be
effected by giving forty-five (45) days written notice of
termination to Consultant.
7. UNIQUE INJUNCTIVE RELIEF.
7.1 Consultant hereby represents and agrees that the services to
be performed under the terms of this Contract/Agreement are of
a special, unique, unusual, extraordinary, and intellectual
character that gives them a peculiar value, the
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loss of which cannot be reasonably or adequately compensated
in damages in an action at law. Consultant therefore expressly
agrees that NURESCELL, in addition to any other rights or
remedies that NURESCELL may possess, shall be entitled to
injunctive and other equitable relief to prevent or remedy a
breach of this Agreement by Consultant.
8. PROPRIETARY RIGHTS.
6.1 NEW DEVELOPMENTS. Consultant agrees that all designs, plans,
reports, specifications, drawings, inventions, processes, and
other information or items produced by Consultant while
performing services under this Agreement will be assigned to
Client as the sole and exclusive property of Client and
Client's assigns, nominees, and successors, as well any
copyrights, patents, or trademarks obtained by Consultant
while performing services under this Agreement. On request and
at Client's expense, Consultant agrees to help Client obtain
patents and copyrights for any new developments. This includes
providing data, plans specifications, descriptions,
documentation, and other information, as well as assisting
Client in completing any required application or registration.
6.2 CONFIDENTIAL INFORMATION. Any written, printed, graphic, or
electronically or magnetically recorded information furnished
by Client for Consultant's use are the sole property of
Client. This proprietary information includes, but is not
limited to, customer requirements, customer lists, marketing
information, and information concerning Client's employees,
products, services, prices, operations, and subsidiaries.
Consultant will keep this confidential information in the
strictest confidence, and will not disclose it by any means to
any person except with Client's approval, and only to the
extent necessary to perform the services under this agreement.
This prohibition also applies to Consultant's employees,
agents, and subcontractors. On termination of this agreement,
Consultant will return any confidential information in his
possession to Client.
(a) The parties acknowledge and agree that during the terms
of this agreement and in the course of the discharge of
his duties hereunder, Consultant shall have access to
and become acquainted with
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information concerning the operation and process of
NURESCELL, including without limitation, financial,
personnel, sales, scientific, and other information that
is owned by NURESCELL and regularly used in the
operation of NURESCELL's business, and that such
information constitutes NURESCELL's trade secrets.
(b) Consultant specifically agrees that he shall not misuse,
misappropriate, or disclose any such trade secrets,
directly or indirectly, to any other person or use them
in any way, either during the term of this agreement or
at any other time thereafter, except as is required in
the course of his Agreement hereunder.
(c) Consultant acknowledges and agrees that the sale or
unauthorized use or disclosure of any of NURESCELL's
trade secrets obtained by Consultant during the course
of this Agreement, including information concerning
NURESCELL's current or any future and proposed work,
services or products, the facts that any such work,
services, or products are planned, under consideration,
or in production, as well as any descriptions thereof,
constitute unfair competition. Consultant promises and
agrees not to engage in any unfair competition with
NURESCELL, either during the term of this Agreement.
(d) Consultant further agrees that all files, records,
documents, drawings, specifications, equipment, and
similar items relating to NURESCELL's business, whether
prepared by NURESCELL or others, are and shall remain
exclusively the property of NURESCELL and that they
shall be removed from the premises of NURESCELL only
with the express prior written consent of NURESCELL's
Board of Directors.
8.3 NON-SOLICITATION. For a period of two (2) years following the
termination of this Agreement, Consultant will not do either
of the following: (1) call on, solicit, or take away any of
Client's customers or potential customers Consultant became
aware of as a result of performing services under this
agreement; or (2) solicit or hire away any of Client's
employees or contractors Consultant became aware of as a
result of performing services under this Agreement.
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8.4 EFFECT OF MERGER, TRANSFER OF ASSETS, OR DISSOLUTION. This
Agreement shall be terminated by any voluntary or involuntary
dissolution of NURESCELL; provided, however, that if said
dissolution is the result of either a merger or consolidation
in which NURESCELL is not the consolidated or surviving
corporation, or a transfer of all or substantially all of the
assets of NURESCELL, then at the option of Consultant, he
shall be entitled to be paid the balance remaining under this
Agreement. In the event of a Merger or transfer of Assets
NURESCELL will retain the right to terminate this Agreement.
9. GENERAL PROVISIONS
9.1 TIME OF THE ESSENCE. Time is of the essence with respect to
this Agreement.
9.2 ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties with respect to the subject matter hereof,
and there are no agreements, understandings, representations
or warranties among the parties other than those set forth or
referred to herein.
9.3 EXPENSES. Except as set forth in this Agreement, whether the
transactions contemplated hereby are consummated or not, all
legal and other costs and expenses incurred in connection with
this Agreement and the transactions contemplated hereby shall
be paid by the party incurring such costs and expenses.
9.4 NOTICES. All notices ("Notice") hereunder shall be
sufficiently given for all purposes hereunder if in writing
and delivered personally, sent by documented overnight
delivery service or to the extent receipt is confirmed,
telecopy, telefax, or other electronic transmission service to
the appropriate address or number as set forth below.
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Notices to NURESCELL, Inc. shall be addressed to:
0000 Xxxxxxx Xxxxxx, Xxxxx
Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Telephone Number: (000) 000-0000
Facsimile Number: (000) 000-0000
Notices to Xx. Xxxxx Xxxx shall be addressed to:
000 Xxxx Xxxxxx
Xxx Xxxxxxxx, Xxxxxxxxxx 00000
Telephone Number: ________________________________
Facsimile Number: ________________________________
Any party may change the Notice designation by complying with the notice
provision hereof.
9.5 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their
respective successors and assigns.
9.6 HEADINGS; DEFINITIONS. The Section and article headings
contained in this Agreement are inserted for convenience of
reference only and will not affect the meaning or
interpretation of this Agreement. All references to Sections or
Articles contained herein mean Sections or Articles of this
Agreement unless otherwise stated. All capitalized terms
defined herein are equally applicable to both the singular and
plural forms of such farms.
9.7 ASSIGNMENT. This Agreement and all of the provisions hereof
shall be binding upon and insure to the benefit of the parties
hereto and their respective successors and permitted assigns,
but neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties
hereto without the prior written consent of the other parties.
9.8 GOVERNING LAW. This Agreement and the legal relations among
the parties hereto shall be governed by and constructed in
accordance with the laws of the State of California.
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9.9 AMENDMENTS AND WAIVERS. This Agreement may not be modified or
amended except by an instrument or instruments in writing
signed by the party against whom enforcement of any such
modification or amendment is sought. Either party hereto may,
only by an instrument in writing, waive compliance by the other
party hereto with any term or provision of this Agreement. The
waiver by any party hereto of a breach of any term or
provision of this Agreement shall not be construed as a waiver
of any subsequent breach.
9.10 ATTORNEYS FEES AND COSTS. In the event of any breach of this
Agreement including any representation or warranty contained
in this Agreement which results in a claim being made against
the breaching party, the prevailing party shall be entitled to
recover reasonable attorney's fees and costs arising
therefrom, including but not limited to, travel and lodging
expenses, expert witness fees, depositions and related costs.
9.11 ARBITRATION. Any dispute or claim arising under or with
respect to this Agreement will be resolved by arbitration in
Los Angeles, CA in accordance with the Commercial Arbitration
Rules of the American Arbitration Association before a panel
of three (3) arbitrators, in accordance with the Commercial
Arbitration Rules of the American Arbitration Association. The
decision or xxxx of a majority of the arbitrators shall be
final and binding upon the parties. Any arbitrated award may
be entered as a judgment or order in any court of competent
jurisdiction.
9.12 SEVERABILITY. If any provision of this Agreement shall be
declared void or unenforceable by a court of competent
jurisdiction, the remaining provisions of this Agreement shall
nevertheless continue in effect.
9.13 FULL AUTHORITY. Each party hereto has taken all necessary
action to authorize such party to enter into and perform under
this Agreement. Each party hereto represents and warrants that
nothing contained in this Agreement violates or conflicts with
any agreement, contract or understanding to which such party
or its properties is subject, or any law rule regulation or
order or to any of the charter 5 documents or internal
policies or procedures of such party. Each person whose
signature is affixed hereto in a representative capacity
represents and warrants that he or she is
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authorized to execute this Agreement on behalf of and to bind
the entity on whose behalf his or her signature is affixed.
9.14 COUNTERPARTS: EXECUTION BY FACSIMILE. This Agreement and/or
any amendments to this Agreement may be executed in one or
more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same
instrument. This Agreement is effective when each party has
received an executed version transmitted to such party via
facsimile by the other party.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and their respective corporate seals to be affixed hereto, all as of
the day and year first above written.
NURESCELL, INC.
"CLIENT"
By: /s/ XXXXXX X. XXXXXX Date: 6/29/99
---------------------------- -------------------------
President
By: Date:
---------------------------- -------------------------
Secretary
"CONTRACTOR"
By: /s/ XXXXX XXXX Date: 6/29/1996
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XX. XXXXX XXXX
* * *
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