EMPLOYMENT AGREEMENT
(PRESIDENT)
Nurescell, Inc., a Nevada corporation with its principal place of
business located at 0000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxx Xxxxx,
Xxxxxxxxxx ("Employer") and Xxxxxx X. Xxxx whose resident address is X.X. Xxx
000, Xxxxxx Xxxxx, Xxxxxxxxxx 00000 ("Employee") in consideration of the
mutual promises and covenants made herein and other valuable consideration
agree as follows:
ARTICLE 1. ENGAGEMENT
1.1 TITLE, BOARD MEMBERSHIPS. Employer hereby engages Employee and Employee
hereby accepts employment with Employer, to perform Employee's services as
President of Employer and such other services as may be required of Employee
under this Agreement, on the terms and conditions hereinafter set forth.
Employee further agrees to accept election and to serve during all or any
part of the Term (as that Term is defined in Section 2 hereof) of this
Agreement as an officer and/or director of Employer and of any subsidiary or
affiliate of Employer, without compensation therefor, except as set forth in
this Agreement, if elected to any such position by the shareholders of
Employer or by the Board of Directors of Employer (the "Board") or of any
subsidiary or affiliate, as the case may be.
1.2 DUTIES, PLACE OF EMPLOYMENT. Employee shall perform all duties
customarily performed by Employees employed in the capacity of President of
companies engaged in the business of Employer and shall use and devote his
full time and efforts in the discharge of his duties. Employee shall perform
his duties at Employer's principal offices in Newport Beach, California, but
shall travel to and from such address as may be reasonably required in the
performance of such duties. Subject to the terms of this Agreement, Employee
shall comply promptly and faithfully with Employer's reasonable instructions,
directions, requests, rules and regulations. Employer shall not be deemed to
have waived the right to require Employee to perform any duties hereunder by
assigning Employee to any other duties or services.
1.3 "EMPLOYMENT TERM" DEFINED. "Employment term" refers to the entire
period of employment of Employee by Employer, whether for the periods
provided above, or whether terminated earlier as hereinafter provided or
extended by mutual agreement between Employer and Employee.
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ARTICLE 2. DUTIES AND OBLIGATIONS OF EMPLOYEE
2.1 DUTIES, PLACE OF EMPLOYMENT. Employee shall perform all duties
customarily performed by Employees employed in the capacity of President of
companies engaged in the business of Employer and shall use and devote his
full time and efforts in the discharge of his duties. Employee shall perform
his duties at Employer's principal offices in Newport Beach, California, but
shall travel to and from such address as may be reasonably required in the
performance of such duties.
2.2 MATTERS REQUIRING CONSENT OF BOARD OF DIRECTORS. Employee shall not,
without specific approval of Employer's Board of Directors, do or contract to
do any of the following:
(1) Borrow on behalf of Employer.
(2) Permit any customer of Employer to become indebted to
Employer.
(3) Purchase capital equipment for amounts in excess of the
amounts budgeted for expenditure by the Board of Directors.
(4) Sell any single capital asset of Employer.
(5) Terminate the services of any other officer of Employer or
hire any replacement of any officer whose services have been
terminated without the prior written approval of the Board of
Directors.
(6) Commit Employer to the expenditure of more than $10,000 for
any purpose without the prior written approval of the Board
of Directors.
2.3 DEVOTION TO EMPLOYER'S BUSINESS.
(a) Employee shall devote his entire productive time, ability,
and attention to the business of Employer during the term of this contract.
(b) Employee shall not engage in any other business duties or
pursuits whatsoever, or directly or indirectly render any services of a
business, commercial, or professional nature to any other person or
organization, whether for compensation or otherwise, without the prior written
consent of Employer's Board of Directors.
(c) This agreement shall not prohibit Employee from making
passive personal investments or conducting private business affairs if those
activities do not materially interfere with the services required under this
agreement. However, Employee shall not directly or indirectly acquire, hold, or
retain any interest in any
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business competing with or similar in nature to the business of Employer.
2.4 COMPETITIVE ACTIVITIES.
(a) During the term of this contract Employee 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 Employer.
(b) Employee agrees that during the term of this contract and for
a period of one (1) year after termination of this agreement, Employee shall not
directly or indirectly solicit, hire, recruit, or encourage any other employee
of Employer to leave Employer.
2.5 UNIQUENESS OF EMPLOYEE'S SERVICES. Employee represents and agrees that
the services to be performed under the terms of this contract are of a
special, unique, unusual, extraordinary, and intellectual character that
gives them a peculiar value, the loss of which cannot be reasonably or
adequately compensated in damages in an action at law. Employee therefore
expressly agrees that Employer, in addition to any other rights or remedies
that Employer may possess, shall be entitled to injunctive and other
equitable relief to prevent or remedy a breach of this contract by Employee.
2.6 INDEMNIFICATION FOR NEGLIGENCE OR MISCONDUCT. Employee shall indemnify
and hold Employer harmless from all liability for loss, damage, or injury to
persons or property resulting from the negligence or misconduct of Employee.
2.7 TRADE SECRETS.
(a) The parties acknowledge and agree that during the term of
this agreement and in the course of the discharge of his duties hereunder,
Employee shall have access to and become acquainted with financial, personnel,
sales, scientific, technical and other information regarding formulas, patterns,
compilations, programs, devices, methods, techniques, operations, plans and
processes that are owned by Employer, actually or potentially used in the
operation of Employer's business, or obtained from third parties under an
agreement of confidentiality, and that such information constitutes Employer's
"trade secrets."
(b) Employee specifically agrees that he shall not misuse,
misappropriate, or disclose in writing, orally or by electronic means, any 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 employment.
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(c) Employee acknowledges and agrees that the sale or
unauthorized use or disclosure in writing, orally or by electronic means, of any
of Employer's trade secrets obtained by Employee during the course of his
employment under this agreement, including information concerning Employer's
actual or potential 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. Employee
promises and agrees not to engage in any unfair competition with Employer,
either during the term of this agreement or at any other time thereafter.
(d) Employee further agrees that all files, records, document,
drawings, specifications, equipment, software, and similar items whether
maintained in hard copy or on line relating to Employer's business, whether
prepared by Employee or others, are and shall remain exclusively the property of
Employer and that they shall not be removed from the premises or, if kept
on-line, from the computer systems of Employer without the prior written
permission of the Board of Directors.
ARTICLE 3. TERM
3.1 The term ("Term") of this Agreement shall commence as of the date
hereof and shall continue until July 31, 2000 and thereafter shall
automatically renew for consecutive one year terms unless (i) terminated by
written notice given by either party to the other at least sixty (60) days
prior to the end of the initial term or any subsequent one year term or (ii)
terminated sooner pursuant to Section 6 of this Agreement. If the Term is
extended pursuant to this Section 3, during such period of extension Employer
shall pay Employee all compensation to which Employee is entitled under this
Agreement.
ARTICLE 4. COMPENSATION
During the Term as full compensation for all services to be performed by
Employee pursuant to this Agreement, Employer agrees to pay Employee the base
salary and bonuses set forth in this Section 4, in addition to such other
benefits and compensation as are provided elsewhere in this Agreement.
4.1 BASE SALARY. Employee shall be entitled to an annual base salary of
One Hundred Forty-Four Thousand Dollars ($144,000.00). The base salary shall
be paid to Employee twice a month during the Term.
4.2 COMMITMENT PAYMENTS. As further consideration for the commitment and
obligations of Employee hereunder, Employer shall issue to Employee, One
Hundred Thousand (100,000) shares of Employer's stock at the end of every six
(6) month period
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of employment, with the first issuance of shares made on or
before December 15, 1999 and every six (6) months thereafter during the term
of this Agreement. In addition, Employee will receive a stock option for the
purchase of Two Hundred Fifty Thousand (250,000) shares of Employers stock
at the option price of $.75 per share, exercisable on the anniversary date of
each year of employment, commencing the first year of employment and ending
upon termination of this Agreement or July 31, 2000 whichever sooner occurs.
Notice of the exercise of any option rights hereunder must be given no
earlier than thirty (30) days prior to the anniversary date and no later than
seven (7) days after such anniversary date. It is understood, however, that
all said shares are to be deemed "restricted shares" and are received for
Employee's own account and not with a view to or for sale in connection with
any distribution of said shares. All such rights under this Agreement shall
be deemed personal and not subject to transfer or assignment by Employee. To
the extent that any such rights become the subject of a stock option plan of
the Employer, Employee shall be subject to all terms and conditions thereof.
Notwithstanding the foregoing, to the extent not previously exercisable, the
stock option shall become exercisable in its entirety in the event that (i)
there occurs a Change in Control of Employer (as defined herein), (ii)
Employer concludes the sale of substantially all of its assets other than in
a transaction which is intended primarily to effect a corporate
reorganization without material change in beneficial ownership of the
material business of Employer, or (iii) Employee is terminated by Employer
other than for Cause (as hereinafter defined). Employee understands that the
shares of common stock acquired hereunder will not be registered under
federal and state securities laws and may not be transferred without
registration thereunder or pursuant to an exemption therefrom and will bear
or legend to that effect.
4.3 BONUS. Nothing herein contained shall preclude the Board of Directors
of Employer from authorizing the payment to Employee of a bonus, whether in
cash or capital stock, based upon Employee's performance or other reasonable
criteria. The payment of such additional compensation shall not operate as
an amendment obligating Employer to make any similar payment or to pay
additional compensation at any future time or for any future period or be
deemed to affect the base salary in any manner.
4.4 ADDITIONAL BENEFITS.
(a) MEDICAL INSURANCE. Employer shall provide Employee during
the Term with group accident, medical, dental and hospital insurance coverage,
provided however, that such insurance shall only be provided when determined by
the Board of Directors to be within the financial resources of the Company.
(b) BENEFITS GENERALLY OFFERED. In addition to any other
compensation or benefits to be received by Employee pursuant to the terms of
this Agreement, Employee shall be entitled to participate, to the extent
allowable in accordance with his
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status, in all employee benefits offered from time to time by Employer to its
senior officers; including, but not limited to, stock option plans, group
life, disability and any other insurance and profit sharing plans.
ARTICLE 5. VACATION
Employee shall be entitled to two (2) weeks paid vacation for each year
worked during the Term.
ARTICLE 6. TERMINATION
6.1 TERMINATION FOR CAUSE
(a) Employer reserves the right to terminate this agreement if
Employee willfully breaches or habitually neglects the duties which he is
required to perform under the terms of this agreement, or commits acts of
dishonesty, fraud, misrepresentation, or other acts of moral turpitude, that
would prevent the effective performance of his duties.
(b) Employer may at its option terminate this agreement for
the reasons stated in this Section by giving written notice of termination to
Employee without prejudice to any other remedy to which Employer may be
entitled either at law, in equity, or under this agreement.
(c) The notice of termination required by this section shall
specify the ground for the termination and shall be supported by a statement
of relevant facts.
(d) Termination under this section shall be considered "for
cause" for the purpose of this agreement.
6.2 TERMINATION WITHOUT CAUSE
(a) This agreement shall be terminated upon the death of
Employee.
(b) Employer reserves the right to terminate this agreement if
Employee suffers any physical or mental disability that would prevent the
performance of his essential job duties under this agreement, unless
reasonable accommodation can be made to allow Employee to continue working.
Such a termination shall be effected by giving fifteen (15) days written
notice of termination to Employee.
(c) Termination under this section shall not be considered
"for cause"
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for the purposes of this agreement.
6.3 EFFECT OF MERGER, TRANSFER OF ASSETS, OR DISSOLUTION.
(a) This agreement shall be terminated by any voluntary or
involuntary dissolution of Employer resulting from either a merger or
consolidation in which Employer is not the consolidated or surviving
corporation, or a transfer of all or substantially all of the assets of
Employer.
(b) Termination under this section shall not be considered
"for cause" for the purposes of this agreement.
ARTICLE 7. PAYMENTS UPON TERMINATION OF EMPLOYMENT
7.1 PAYMENTS. In the event of the termination of Employee's employment
under this Agreement by Employer, other than termination for "Cause," or if
Employee voluntarily terminates his employment within 90 days prior to or 180
days after a Change of Control (the "Change of Control Period"), Employee
shall have no duty to mitigate and Employer shall upon such termination pay
to Employee (i) three months base salary and (ii) continue payment of health
benefits for a period of three months (together, the "Severance Benefits"),
provided, however, if Employer terminates Employee's employment during the
Change of Control Period, then Employer shall pay Employee Severance Benefits
for a period of one year.
ARTICLE 8. EMPLOYEE'S REPRESENTATIONS AND WARRANTIES
Employee hereby warrants and represents to Employer and Employer as
follows, each of which representation and warranty is material and is being
relied upon by Employer and Employer and each of which is true at and as of
the date hereof:
8.1 EMPLOYEE'S KNOWLEDGE. That Employee has a pre-existing business or
personal relationship with Employer, that he is aware of the business affairs
and financial condition of Employer. Employee acknowledges that Employer has
made available to Employee the opportunity to ask questions and receive
answers from Employer and that Employee could be reasonably assumed to have
the capacity to protect his own interests in connection with entering into
this agreement.
8.2 NO INCONSISTENT OBLIGATIONS. Employee is under no contractual or other
restriction or obligation, compliance with which is inconsistent with the
execution of this Agreement, the performance of Employee's obligations
hereunder or the other rights of Employer hereunder; and
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8.3 NO INFIRMITY. Employee is under no physical or mental disability that
would hinder the performance of Employee's obligations under this Agreement.
ARTICLE 9. PERSONAL NATURE
This Agreement is personal, being entered into upon the singular
skill, qualifications and experience of Employee. Employee shall not assign
this Agreement or any rights, benefits, duties or obligations hereunder
without the express written consent of Employer. Employee hereby grants to
Employer the right to use Employee's name, likeness and/or biography in
connection with the services performed by Employee hereunder and in
connection with the advertising or exploitation of any project with respect
to which Employee performs services hereunder.
ARTICLE 10. NOTICES
Any and all notices or other communications required or permitted by
this Agreement or by law shall be deemed duly served and given when actually
received by personal delivery or by certified mail, return receipt requested,
with first class postage prepaid thereon, to the party to whom such notice or
communication is directed, addressed as follows:
EMPLOYER: NURESCELL INC.
0000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
EMPLOYEE: XXXXXX X. XXXX
X.X. Xxx 000
Xxxxxx Xxxxx, XX 00000
Each of the parties hereto may change its address for purposes of this
Section 11 by giving written notice of such change in the manner provided for
in this Section 11.
ARTICLE 11. GOOD FAITH
All approvals and consents required to be given by any party to this
Agreement shall be given or withheld in good faith and may not be
unreasonably withheld. Each party hereto shall use due diligence in its
attempt to accomplish any act required to be accomplished by that party.
ARTICLE 12. ATTORNEY'S FEES AND EXPENSES
In the event that it should become necessary for any party to this
Agreement to
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bring an action, including any agreed upon arbitration, either
at law or in equity, to enforce or interpret the terms of this Agreement, the
prevailing party in such action shall be entitled to recover its reasonable
attorneys' fees and expenses as a part of any judgment therein, in addition
to any other award which may be granted.
ARTICLE 13. APPLICABLE LAW/VENUE
This Agreement is executed and intended to be performed in the State of
California and the laws of such state shall govern its interpretation and
effect. If suit is instituted by any party hereto by any other party hereto
for any cause or matter arising from or in connection with the respective
rights or obligations of the parties hereunder, the sole jurisdiction and
venue for such action shall be the Superior Court of the State of California
in and for Orange County.
ARTICLE 14. INTEGRATED AGREEMENT
This Agreement constitutes the entire agreement of the parties with
respect to the subject matter of this Agreement.
ARTICLE 15. SEVERABILITY
Any provision in this Agreement which is, by competent judicial
authority, declared illegal, invalid or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such
illegality, invalidity or unenforceability without invalidating the remaining
provisions hereof or affecting the legality, validity or enforceability of
such provision in any other jurisdiction. The parties hereto agree to
negotiate in good faith to replace any illegal, invalid or unenforceable
provision of this Agreement with a legal, valid and enforceable provision
that, to the extent possible, will preserve the economic bargain of this
Agreement, or otherwise to amend this Agreement, including the provision
relating to choice of law, to achieve such result.
ARTICLE 16. WAIVER
No waiver of any of the provisions of this Agreement shall be deemed,
or shall constitute, a waiver of any other provision, whether or not similar,
nor shall any waiver constitute a continuing waiver. No waiver shall be
binding unless executed in writing by the party making the waiver.
16.1 PARTIAL INVALIDITY. If any provision in this agreement is held by a
court of competent jurisdiction to be invalid, void, or unenforceable, the
remaining provisions shall nevertheless continue in full force without being
impaired or invalidated in any way.
16.2 LAW GOVERNING AGREEMENT. This agreement shall be governed by and
construed in accordance with the laws of the State of California. The
parties agree to submit to the jurisdiction and venue of the Orange County
Superior Court.
16.3 SUMS DUE DECEASED EMPLOYEE. If Employee dies prior to the expiration of
the term of his employment, any sums that may be due him from Employer under
this agreement as of the date of death shall be paid to Employee's spouse, if
any, or if employee is not married, then to his heirs.
ARTICLE 17. APPROVAL OF THE BOARD OF DIRECTORS
The Board of Directors has approved the terms of this Agreement and
shall execute an appropriate resolution which shall be certified by the
Secretary thereof.
ARTICLE 18. 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.
Executed on ___________, 19_____, at _________________, California.
EMPLOYER EMPLOYEE
NURESCELL, INC., a Nevada
Corporation _____________________________
XXXXXX X. XXXX
_____________________________
By___________________________
Chairman of the Board
