CONSULTING AGREEMENT
Exhibit 6.2
This
Consulting Agreement (the “Agreement”) is made and
entered into as of the 13th day of April, 2015,
by and between Beauty and Xxx Xxx, LLC, a North Carolina
corporation (hereinafter the “Company”) and Priel
Maman, an independent contractor consultant (hereinafter
“Consultant”).
W
I T N E S S E T H:
WHEREAS, the
Company is in the business of providing technical hardware and
software services (the “Business”);
WHEREAS, the
Company desires to retain the services of Consultant for the
purposes of Creative influence, leadership and direction and is
willing to provide such services to the Company;
WHEREAS, the
parties desire to enter into this Agreement to set forth the terms
and conditions of the consulting relationship between the Company
and Consultant;
NOW,
THEREFORE, for and in consideration of the mutual promises,
covenants and conditions hereinafter set forth, and other good and
valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Company and Consultant hereby agree as
follows:
Section
1. Consulting Services. Consultant shall
provide the following services:
Creative influence,
leadership and direction of the company’s products, services
and brand. As the Company’s Founder he will participate in
multiple distribution and salon oriented trade and educational
events, promotional exercises, videos and other marketing
vehicles.
Term.
Consultant’s term of engagement (the “Engagement
Term”) under this Agreement shall be for two years,
commencing on the day of closing and shall expire on two year from
the date of such closing, unless extended in writing by both the
Company and Consultant or earlier terminated pursuant to the terms
and conditions set forth in this Agreement. The Company may
terminate the Consultant for cause. Cause is defined as used
herein, the term “Cause”
shall mean only (i) the commission of a felony by the Executive
(other than motor vehicle offenses the effect of which do not
materially impair the Executive’s performance of his/her
duties hereunder), (ii) the commission by the Executive of an act
of fraud or embezzlement against the Company or any of its
affiliates, (iii) conduct which is negligent or willful and
deliberate on the Executive’s part and which is (or would
reasonably be expected to be) materially detrimental to the Company
or any of its affiliates, (iv) the Executive’s material
breach of this Agreement, the Restricted Stock Purchase Agreement,
the Nondisclosure and Confidentiality Agreement or the Assignment
of Intellectual Property Agreement, each between the Executive and
the Company, which breach the Executive has failed to cure (if
curable) within ten (10) business days after receiving written
notice thereof, (v) the Executive’s material violation of any
policies or procedures of the Company if the Company has given
Executive written notice of such violation and Executive persists
in such violation, (vi) insubordination consisting of the
Executive’s continued failure to take specific action
requested by the Board of Directors that is within his individual
control and consistent with his status as a senior executive of the
Company and his duties and responsibilities under any agreement
with the Company or any law, or (vii) the continued use of alcohol
or drugs by the Executive following written notice by the Company
that, in the good faith determination of the Board of Directors,
such use materially interferes with the performance of the
Executive’s duties and responsibilities.
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Section
2. Exclusive Services
and Best Efforts. Consultant agrees to devote his/her best
efforts, energies and skills to the discharge of the duties and
responsibilities attributable to his/her position. Consultant also
agrees that he shall not take personal advantage of any business
opportunities that arise during his/her employment and that may
benefit the Company. All material facts regarding such
opportunities must be promptly reported to the Company’s
CEO-Xxxxxxx Xxxx for consideration by the Company, and only Xxxxxxx
Xxxx may waive this provision, and thereby permit Consultant to
take personal advantage of any such business
opportunities.
Section
3. Compensation.
The Company agrees to pay Consultant the sum of $12,000 per
month.
Section
4. Taxes and
Insurance. Consultant understands that he is solely
responsible for paying all federal, state and local income taxes
and FICA taxes on any earnings pursuant to this Agreement.
Consultant further understands that he is responsible for all
insurance, including health, life, and worker’s compensation.
Consultant will be issued a 1099 tax form and hereby agrees to
indemnify and hold harmless the Company from and for the payment of
any taxes, interest, penalties, levies or assessments applicable
thereto.
Section
5. Non-Competition and
Confidential Information. Consultant acknowledges that
his/her position with the Company is special, unique, and
intellectual in character and his/her position with the Company
will place him/her in a position of confidence and trust with
employees and clients of the Company.
Section
(a) Non-Competition.
Consultant agrees that during the term and for a period of one (1)
year thereafter within the restricted territory (as defined below)
Consultant will not directly or indirectly: (i) employ or attempt
to employ or assist anyone in employing any person who is an
employee of the Company or was an employee of the Company during
the previous one year period; or (ii) attempt in any manner to or
persuade any client of the Company to cease doing business or
reduce the amount of business that such client has customarily done
with the Company. The term “restricted territory”
includes the United States of America.
Section
(b) Confidentiality.
Consultant acknowledges that he will have access to certain
proprietary and confidential information of the Company and its
clients including, but not limited to, contemplated new mergers and
acquisitions, investment services, sales, projections, and
financial information. Consultant agrees not to use or disclose any
confidential information during the term of this Agreement or
thereafter other than in connection with performing
Consultant’s services for the Company in accordance with this
Agreement.
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Section
(c) Enforcement.
(i)
Consultant agrees
that the restrictions set forth in this paragraph, and each
subparagraph therein, are reasonable and necessary to protect the
goodwill of the Company. If any of the covenants set forth herein
are deemed to be invalid or unenforceable based upon the duration
or otherwise, the parties contemplate that such provisions shall be
modified to make them enforceable to the fullest extent permitted
by law.
(ii)
In the event of a
breach or threatened breach by Consultant of the provisions set
forth in this paragraph, Consultant acknowledges that the Company
will be irreparably harmed and that monetary damages shall be an
insufficient remedy to the Company. Therefore, Consultant consents
to enforcement of this paragraph by means of temporary or permanent
injunction and other appropriate equitable relief in any competent
court, in addition to any other remedies the Company may have under
this Agreement or otherwise.
Section
6. Intellectual
Property.
(a)
The Company has
hired Consultant to perform consulting services full time so
anything Consultant produces during the agreement term is the
property of the Company. Any writing, invention, design, system,
process, development or discovery conceived, developed, created, or
made by Consultant, alone or with others, during the period of this
Agreement and applicable to the business of the Company, whether or
not patentable, registrable, or copyrightable shall become the sole
and exclusive property of the Company, excluding any writing,
invention, design, system, development or discovery (i) that
Consultant developed on his/her own time without using the
Company’s equipment, supplies, business or trade secrete
information and (ii) that do not relate to the Company’s
business or actual or demonstrably anticipated research or
development, or that do not result from any services performed by
Consultant for the Company.
(b)
Consultant shall
report all writings, inventions, designs, systems, developments, or
discoveries, together with related records, developed by
Consultant, solely or jointly, to the Company of the
Company.
(c)
Consultant shall,
during the period of this Agreement and at any time from time to
time hereafter, (i) execute all documents requested by the Company
for vesting in the Company the entire right, title and interest in
and to the same, (ii) execute all documents requested by the
Company for filing such applications for and procuring patents,
trademarks, service marks or copyrights as the Company, in its sole
discretion, may desire to prosecute, and (iii) give the Company all
assistance it may reasonably require, including the giving of
testimony in any suit, action, investigation or other proceeding,
in order to obtain, maintain and protect the Company’s right
therein and thereto.
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Section
7. Representations and
Warranties of Consultant. Consultant hereby represents and
warrants to the Company as follows: (i) Consultant has the legal
capacity and unrestricted right to execute and deliver this
Agreement and to perform all of his/her obligations hereunder; (ii)
the execution and delivery of this Agreement by Consultant and the
performance of his/her obligations hereunder will not violate or be
in conflict with any fiduciary or other duty, instrument,
agreement, document, arrangement, or other understanding to which
Consultant is a party or by which he is or may be bound or subject;
and (iii) Consultant is not a party to any instrument, agreement,
document, arrangement, or other understanding with any person
(other than the Company) requiring or restricting the use or
disclosure of any confidential information.
Section
8. Post-Engagement
Obligations. All records, files, lists, including computer
generated lists, drawings, documents, equipment and similar items
relating to the Company’s business that Consultant prepared
or received from the Company shall remain the Company’s sole
and exclusive property. Upon termination of this Agreement,
Consultant promptly returns to the Company all property of the
Company in his/her possession. Consultant further represents that
he will not copy or cause to be copied, print out, or cause to be
printed out any software, documents or other materials originating
with or belonging to the Company. Consultant additionally
represents that, upon termination of his/her engagement with the
Company, he will not retain in his/her possession any such
software, documents, or other materials.
Section
9. Breach of
Agreement. Consultant recognizes that irreparable damage
would result to the Company and its business if Consultant was to
disclose to anyone any of the information provided to him/her by
and/or through his/her work with the Company. the Company shall be
entitled to pursue any available remedies, whether legal or
equitable, including injunctive relief, in the case of violation of
the provisions of this Agreement and, if the Company prevails in
any such legal action, Consultant will be obligated to pay the
Company’s reasonable attorney’s fees. Any breach of
this Agreement will be governed by the laws of the State of North
Carolina.
Section
10. Governing
Law. This Agreement shall be governed by, construed and
enforced in accordance with the laws of the State of North
Carolina, without regard to the conflicts of law rules of North
Carolina.
Section
11. Jurisdiction.
Each of the parties hereto hereby irrevocably consents and submits
to the jurisdiction of the Supreme Court of the State of North
Carolina, Superior and/or District Court in Mecklenburg County, and
of the United States District Court for the Western District of
North Carolina in connection with any suit, action, or other
proceeding concerning the interpretation and/or enforcement of this
Agreement. Consultant waives and agrees not to assert any defense
that the court lacks jurisdiction, venue is improper, inconvenient
forum or otherwise. Consultant waives the right to a jury trial and
agrees to accept service of process by certified mail at
Consultant’s last known address.
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Section
12. Successors and
Assigns. Neither this Agreement, nor any of
Consultant’s rights, powers, duties or obligations hereunder,
may be assigned by Consultant. This Agreement shall be binding upon
and inure to the benefit of Consultant and his/her heirs and legal
representatives and the Company and its successors. Successors of
the Company shall include, without limitation, any company or
companies acquiring, directly or indirectly, all or substantially
all of the assets of the Company, whether by merger, consolidation,
purchase, lease or otherwise, and such successor shall thereafter
be deemed “the company” for the purpose
hereof.
Section
13. Waiver. Any
waiver or consent from the Company with respect to any term or
provision of this Agreement or any other aspect of
Consultant’s conduct or engagement shall be effective only in
the specific instance and for the specific purpose for which given
and shall not be deemed, regardless of frequency given, to be a
further or continuing waiver or consent. The failure or delay of
the Company at any time or times to require performance of, or to
exercise any of its powers, rights or remedies with respect to any
term or provision of this Agreement or any other aspect of
Consultant’s conduct or engagement shall in no manner (except
as otherwise expressly provided herein) affect the Company’s
right at a later time to enforce any such term or
provision.
Section
14. Notice. All
notices, requests, demands and other communications hereunder shall
be in writing and shall be deemed to have been duly given if
delivered by hand or mailed within the continental United States by
first class, registered mail, return receipt requested, postage and
registry fees prepaid, to the applicable party and addressed as
follows:
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(a)
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the Company:
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Xxxxxxx
Xxxx
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Level Beauty Group,
Inc.
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0000 Xxxxxx Xxxx,
Xxxxx 000
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Xxxxxxxxx, XX
00000
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(b)
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The
Consultant:
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Priel
Maman
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0000 Xxxxxxxx
Xxxxxx
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Xxxx Xxxx Xxxxx, XX
00000
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Section
15. Amendment.
No amendment or modification of this Agreement shall be valid or
effective, unless in writing and signed by the parties to this
Agreement.
Section
16. Entire
Agreement.
(a)
This Agreement
embodies the entire agreement of the parties hereto with respect to
its subject matter and merges with and supersedes all prior
discussions, agreements, commitments, or understandings of every
kind and nature relating thereto, whether oral or written, between
Consultant and the Company. Neither party shall be bound by any
term or condition other than as is expressly set forth
herein.
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(b)
Consultant
represents and agrees that he fully understands his right to
discuss all aspects of this Agreement with his private attorney,
that to the extent he desired, he availed himself of this right,
that he has carefully read and fully understands all of the
provisions of this Agreement, that he is competent to execute this
Agreement, that his decision to execute this Agreement has not been
obtained by any duress and that he freely and voluntarily enters
into this Agreement, and that he has read this document in its
entirety and fully understands the meaning, intent and consequences
of this Agreement.
CONSULTANT:
/s/ Priel
Mamam
DATE:4/7/15
COMPANY:
Beauty
and Xxx Xxx, LLC
/s/ Xxxxxxx
Xxxx
DATE:4/7/15
Name:
Xxxxxxx Xxxx
Title:
Chief Executive Officer
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