EXHIBIT 10.13
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is entered into as of April 1, 2003
(the "Effective Date") by and between Nurescell Inc. (the "Company"), Triton
Private Equities Fund, L.P. (the "Investor") and Xxxxx Xxxxxxxx, dba Business
Analysis Group, LLC (the "Consultant").
RECITALS
1 The Company and the Investor desire to obtain certain services of Consultant
for the Company, and Consultant desires to provide such services, in each case
on the following terms and conditions.
Accordingly, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties agree as follows:
AGREEMENT
1. CONSULTING PERIOD.
(a) INITIAL TERM. The Company hereby retains Consultant to provide, and
Consultant hereby agrees to render to the Company, those services
described in Section 2 for the period (the "Consulting Period")
commencing on the Effective Date and ending on the earlier of (i) one
(1) year thereafter (the "Term Date") as, and to the extent, extended
under Section 1(b) and (ii) the date the Consulting Period is
terminated in accordance with Section 4. The Company shall pay
Consultant the compensation to which he is entitled under Section 3(a)
through the end of the Consulting Period and, thereafter, the Company's
obligations hereunder shall end.
(b) EXTENSION. Subject to Section 4, the Consulting Period may be
extended at the option of the Company for additional six (6) month
periods by providing written notice to Consultant thirty (30) days
prior to the Term Date or the end of any extension period. Termination
of the Consulting Period under this Section 1(b), instead of extending
the Agreement, may be with or without cause.
2. DUTIES AND RESPONSIBILITIES.
(a) Consultant hereby agrees to provide and perform for the Company
those services set forth on Exhibit A attached hereto and such other
services as may be reasonably requested by the Company. Consultant
shall devote his best efforts to the performance of such services.
(b) Consultant shall use his best efforts to comply with all policies
and practices of the Company of which Consultant is given notice.
(c) As an independent contractor, Contractor shall not look to the
Company as Con-tractor's employer, nor as a partner or principal. Thus,
Contractor understands that he is not eligible for Company benefits and
voluntarily accepts this arrangement. Nothing in this Agreement shall
be construed to be inconsistent with this relationship. Contractor may
apply his time according to his own judgement and discretion, but shall
devote sufficient time and attention to enable him to perform his
obligations herein.
3. COMPENSATION, BENEFITS AND EXPENSES.
(d) COMPENSATION. In full payment for all of the services to be
rendered hereunder, Consultant shall be paid Three Thousand Dollars
($3,000.00) per calendar month, payable on the 1st business day of each
month (pro rated for partial months). Consultant shall also be entitled
to receive shares of Company common stock in an amount to be determined
by mutual agreement between the Company, Consultant and the Investor.
If it appears that the logged hours spent by Consultant related to
fulfilling his contractual duties seems insufficient to support the
monthly fee, both parties may negotiate a lower monthly fee.
(e) NO OTHER BENEFITS. Other than the compensation specified in this
Section 3, Consultant shall not be entitled to any direct or indirect
compensation or other benefits for services performed hereunder.
(f) EXPENSES. The Company shall reimburse Consultant for reasonable
travel and other business expenses incurred in the performance of his
duties in accordance with the Company's general policies, as they may
be amended from time to time during the course of this Agreement.
Consultant shall provide all receipts and backup material for expenses
submitted, as requested by the Company. Consultant shall notify the
Investor prior to incurring any expenditures related to overnight
travel or the purchase of any equipment for the Company.
(g) DAILY LOG. Consultant shall keep a daily log which accurately
reflects hours spent on Company related duties.
4. TERMINATION OF AGREEMENT.
(a) At any time and without liability, either the Company, the Investor
or Consultant may terminate this Agreement and the Consulting Period
for any reason, with or without cause, by giving thirty (30) days
advance written notice to the other parties. If Consultant gives notice
of termination pursuant to this Section 4(a), the Company and the
Investor shall have the option, in their complete discretion, to
thereafter terminate Consultant immediately without the need for any
notice period. Upon termination, the Company shall pay Consultant the
compensation to which he is entitled pursuant to Section 3(a) through
the end of the Consulting Period, and thereafter all obligations of the
Company and the Investor shall terminate.
(b) Consultant hereby acknowledges and agrees that all (i) property,
including, without limitation, all books, records, reports, notes,
contracts, lists and other documents or materials, or copies thereof,
(ii) Proprietary Information (as defined below) and (iii) equipment, in
each case of either the Company or the Investor, that is furnished to
or prepared by Consultant in the course of or incident to his services
to the Company, shall remain the property of the Company or the
Investor, as the case may be, and shall be promptly returned to the
owner thereof upon termination of the Consulting Period. Following
termination, Consultant will not retain any written or other tangible
material containing any Proprietary Information. Consultant's
obligations under this Section shall survive termination of the
Consulting Period and this Agreement.
5. PROPRIETARY INFORMATION.
(h) DEFINED. "Proprietary Information" is all information and any idea
in whatever form, tangible or intangible, pertaining in any manner to
the business of the Company unless: (i) the information is or becomes
publicly known through lawful means, (ii) the information was
rightfully in Consultant's possession or part of his general knowledge
prior to the Consulting Period or (iii) the information is disclosed to
Consultant without confidential or proprietary restrictions by a third
party who rightfully possesses the information (without confidential or
proprietary restriction) and did not learn of it, directly or
indirectly, from the Company.
(i) GENERAL RESTRICTION ON USE. Consultant agrees to hold all
Proprietary Information in strict confidence and trust for the sole
benefit of the Company and not to, directly or indirectly, disclose,
use, copy, publish, summarize, or remove from the Company's premises
any Proprietary Information (or remove from the premises any other
property of the Company), except (i) during the Consulting Period to
the extent necessary to carry out Consultant's responsibilities under
this Agreement and (ii) after termination of the Consulting Period as
specifically authorized in writing by the Company.
(j) INTERFERENCE WITH BUSINESS; COMPETITIVE ACTIVITIES. Consultant
agrees that for a period of one (1) year after termination of the
Consulting Period, he shall not, for himself or any third party,
directly or indirectly (i) divert or attempt to divert from the Company
any business of any kind in which it is engaged, including, without
limitation, the solicitation of or interference with any of its
customers or (ii) employ, solicit for employment, or recommend for
employment any person employed by the Company during the Consulting
Period.
6. ASSIGNMENT; SUCCESSORS AND ASSIGNS. Consultant agrees that he will not
assign, sell, transfer, delegate or otherwise dispose of, whether voluntarily or
involuntarily, or by operation of law, any rights or obligations under this
Agreement, nor shall Consultant's rights be subject to encumbrance or the claims
of creditors. Any purported assignment, transfer, or delegation shall be null
and void. Subject to the foregoing, this Agreement shall be binding upon and
shall inure to the benefit of the parties and their respective heirs, legal
representatives, successors, and permitted assigns, and shall not benefit any
person or entity other than those enumerated above.
7. NOTICES. All notices or other communications required or permitted hereunder
shall be made in writing and shall be deemed to have been duly given if
delivered by hand or mailed, postage prepaid by certified or registered mail,
return receipt requested, and addressed as follows:
to the Company:
c/o Triton Private Equities Fund, L.P.
000 Xxxxxxxxx Xxxxxx
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
or to Consultant:
Xxxxx Xxxxxxxx
00 Xxxxxx Xxxx Xxxx
Xxxxx Xxxxx, XX 00000
Email and/or communications by fax may also be acceptable as agreed upon by the
Company, the Investor and Consultant.
8. ENTIRE AGREEMENT. The terms of this Agreement are intended by the parties to
be the final expression of their agreement with respect to the subject matter
hereof and supercede all prior agreements and understandings, written or oral,
with respect to such subject matter. The parties further intend that this
Agreement shall constitute the complete and exclusive statement of its terms and
that no extrinsic evidence whatsoever may be introduced in any judicial,
administrative, or other legal proceeding involving this Agreement.
9. AMENDMENT; WAIVERS. The terms of this Agreement shall not be waived, modified
or amended except by an instrument in writing, signed by a duly authorized
representative of each party. No failure to exercise and no delay in exercising
any right, remedy or power hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any right, remedy or power hereunder
preclude any other or further exercise thereof or the exercise of any other
right, remedy or power provided herein or by law or in equity.
10. SEVERABILITY; ENFORCEMENT. If any provision of this Agreement, or the
application thereof to any person, place, or circumstance, shall be held by a
court of competent jurisdiction to be invalid, unenforceable or void, the
remainder of this Agreement and such provisions as applied to other reasons,
places and circumstances shall remain in full force and effect. It is the
intention of the parties that the covenants contained in Section 5 shall be
enforced to the greatest extent (but to no greater extent) in time, area, and
degree of participation as is permitted by the law of that jurisdiction whose
law is found to be applicable to any acts allegedly in breach of those
covenants.
11. GOVERNING LAW. Subject to Section 10, the validity, interpretation,
enforceability and performance of this Agreement shall be governed by and
construed in accordance with the laws of the State of Connecticut.
12. INDEPENDENT CONTRACTOR. Consultant shall operate at all times as an
independent contractor of the Company. Except as specifically provided herein,
this Agreement does not authorize the Consultant to act for the Company or the
Investor as their agent or to make commitments on behalf of the Company or the
Investor. The Company shall not withhold payroll taxes, and Consultant shall not
be covered by health, life, disability, or worker's compensation insurance of
the Company. Consultant shall be responsible for the payment of all taxes due on
amounts received by him hereunder.
The parties have duly executed this Agreement as of the Effective Date.
/s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx, dba
Business Analysis Group, LLC
Nurescell Inc.
By: /s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx, President
Triton Private Equities Fund, L.P.
By: Triton Capital Management,
L.L.C., General Partner
By: /s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx, Member
EXHIBIT A
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During the term of this Agreement, Consultant shall (i) act as the President,
Secretary, Treasurer and a director of the Company and perform all duties
customarily required or expected in such capacities, including the executing of
all certifications required for various SEC filings, (ii) actively pursue
acquisition candidates for the Company and (iii) carry out all other executive
activities as may be necessary for the proper operation of the Company.
