EMPLOYMENT AGREEMENT
FOR PRESIDENT AND CHIEF EXECUTIVE OFFICER
NURESCELL, INC., a Nevada corporation, with its principal place of
business located at 0000 Xxxx Xxxxxx, Xxxxxx, Xxxxxxxxxx 00000, hereinafter
referred to as Employer, and XXXXXX XXXXXX, 00000 Xxxxxxxx Xxxxxx, Xxxxxx
Xxxxx, Xxxxxxxxxx 00000, hereinafter referred to as Employee, in
consideration of the mutual promises made herein, agree as follows:
ARTICLE 1. TERM OF EMPLOYMENT
SPECIFIED PERIOD
Section 1.01. Employer hereby employs Employee and Employee hereby
accepts employment with Employer for a period of three years beginning June
1, 1998 and terminating on June 1, 2001.
AUTOMATIC RENEWAL
Section 1.02. This agreement shall be renewed automatically for
succeeding terms of one (1) year unless either party gives notice to the
other at least sixty (60) days prior to the expiration of any term of his
intention not to renew.
ARTICLE 2. DUTIES AND OBLIGATIONS OF EMPLOYEE
GENERAL DUTIES
Section 2.01. Employee shall serve as the President of Nurescell, Inc.
In his capacity as President of Nurescell, Inc., Employee shall do and
perform all services, acts, or things necessary or advisable to manage and
conduct the business of Employer, including the hiring and firing of all
employees, subject at all times to the policies set by Employer's Board of
Directors, and to the consent of the Board when required by the terms of this
contract.
MATTERS REQUIRING CONSENT OF BOARD OF DIRECTORS
Section 2.02. 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 during any one fiscal year an amount
in excess of Two Hundred Fifty Thousand Dollars ($250,000.00).
(2) Purchase capital equipment for amounts in excess of the amounts
budgeted for expenditure by the Board of Directors.
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EXHIBIT 6.1
(3) Sell any single capital asset of Employer having market value in
excess of Two Hundred Fifty Thousand Dollars ($250,000.00) or a total of
capital assets during a fiscal year having a market value in excess of Two
Hundred Fifty Thousand Dollars ($250,000.00).
(4) Commit employer to the expenditure of more than $250,000.00 in the
development and sale of new products or services.
DEVOTION TO EMPLOYER'S BUSINESS
Section 2.03. (a). Employee shall devote his productive time, ability
and attention to the extent necessary and appropriate to carry out the duties
as President of the Corporation during the term of this contract.
(b) Nothing contained herein shall prevent Employee from pursuing
directly or indirectly other opportunities for performing other services for
other companies, whether for compensation or otherwise, provided, however,
that Employee shall notify the Board of Directors of such activities. If the
Board should object said additional activities, then in that event, the Board
shall be entitled to place reasonable restrictions upon said additional
activities. The expenditure of reasonable amounts of time for permissible
outside activities, E.G., educational, charitable, or professional activities
shall not be deemed a breach of this agreement if those activities do not
materially interfere with the services required under this agreement and
shall not require the prior written consent of Employer's Board of Directors.
(c) This agreement shall not be interpreted to 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 business competing with or similar in
nature to the business of Employer without the prior approval of the Board of
Directors..
COMPETITIVE ACTIVITIES
Section 2.04. 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.
UNIQUENESS OF EMPLOYEE'S SERVICES
Section 2.05. Employee hereby 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
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entitled to injunctive and other equitable relief to prevent or remedy a
breach of this contract by Employee.
TRADE SECRETS
Section 2.06. (a). The parties acknowledge and agree that during the
terms of this agreement and in the course of the discharge of his duties
hereunder, Employee shall have access to and become acquainted with
information concerning the operation and processes of Employer, including
without limitation, financial, personnel, sales, scientific, and other
information that is owned by Employer and regularly used in the operation of
Employer's business, and that such information constitutes Employer's trade
secrets.
(b) Employee 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 employment hereunder.
(c) Employee acknowledges and agrees that the sale or unauthorized use
or disclosure of any of Employer's trade secrets obtained by Employee during
the course of his employment under this agreement, including information
concerning Employer'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. Employee promises and agrees not to engage in
any unfair competition with Employer, either during the term of this
agreement.
(d) Employee further agrees that all files, records, documents,
drawings, specifications, equipment, and similar items relating to Employer's
business, whether prepared by Employee or others, are and shall remain
exclusively the property of Employer and that they shall be removed from the
premises of Employer only with the express prior written consent of
Employer's Board of Directors.
USE OF EMPLOYEE'S NAME
Section 2.07. (a). Employer shall have the right to use the name of
Employee as part of the trade name or trademark of Employer if it should be
deemed advisable to do so. Any trade name or trademark, of which the name of
Employee is a part, that is adopted by Employer during the employment of
Employee may be used so long as Employee remains President of said Employer.
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ARTICLE 3. OBLIGATIONS OF EMPLOYER
GENERAL DESCRIPTION
Section 3.01. Employer shall provide Employee with the compensation,
incentives, benefits, and business expense reimbursement as specified in this
agreement.
OFFICE AND STAFF
Section 3.02. Employer shall provide Employee with a private office,
stenographic help, office equipment, supplies, and other facilities and
services, suitable to Employee's position and adequate for the performance of
his duties.
INDEMNIFICATION OF LOSSES OF EMPLOYEE
Section 3.03. Employer shall indemnify Employee for all losses
sustained by Employee in direct consequence of the discharge of his duties on
Employer's behalf.
ARTICLE 4. COMPENSATION OF EMPLOYEE
ANNUAL SALARY
Section 4.01. (a). As compensation for the services to be performed
hereunder, Employee shall receive a salary at the rate of One Eighty Thousand
Dollars ($180,000.00) per year, payable Fifteen Thousand Dollars ($15,000.00)
per month on or before the 26th day of each month or more frequently as the
Board of Directors may determine during the term of said employment.
(b) Employee shall receive such annual increases in salary as may be
determined by Employer's Board of Directors in its sole discretion at its
annual meeting.
SALARY CONTINUATION DURING DISABILITY
Section 4.02. If Employee for any reason whatsoever becomes permanently
disabled so that he is unable to perform the duties prescribed herein,
Employer agrees to pay Employee fifty (50%) percent of Employee's annual
salary, payable in the same manner as provided for the payment of salary
herein, for the balance of the contract.
TAX WITHHOLDING
Section 4.03. Employer shall have the right to deduct or withhold from
the compensation due to Employee hereunder any and all sums required for
federal income and
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Social Security taxes and all state or local taxes now applicable or that may
be enacted and become applicable in the future.
REPAYMENT OF DISALLOWED SALARY
Section 4.04. In the event that any portion of the compensation paid by
Employer to Employee is disallowed as an income tax deduction on an income
tax return of Employer, Employee agrees to immediately repay to Employer the
full amount of that portion.
ARTICLE 5. EMPLOYEE INCENTIVES
PROFIT-SHARING BASED ON PERFORMANCE
Section 5.01.(a). For each fiscal year of Employer in which the pre-tax
net profits of Employer exceed Three Hundred Thousand Dollars ($300,000.00)
over the previous year. Employer agrees to pay Employee, within two and
one-half months after the close of that fiscal year, an annual profit-sharing
payment equal to ten (10%) percent of that excess.
(b) If the employment term is terminated by Employer for cause,
Employee shall not be entitled to any portion of the annual profit-sharing
payment for the fiscal year in which that termination occurs. However, if
this contract should expire or be terminated for reasons other than cause,
Employee shall be entitled to that portion of the annual profit sharing
payment that the number of months during the fiscal year that he was employed
hereunder bears to 12 months.
(c) For the purpose of determining the amount of the annual profit
sharing bonus, the net profits of Employer shall be determined by the firm of
independent certified accountants then employed by Employer.
STOCK BONUS
Section 5.02. (a). Employer agrees to transfer to Employee each year
during the employment term, within two and one-half months after the close of
each fiscal year during all of which the Employee served as President of the
Employer, the number of shares of Employer's stock as may be determined by
the Board of Directors.
STOCK OPTION
Section 5.03.(a). Employer hereby grants Employee an option to purchase
One Hundred Thousand (100,000) shares per year of Employer's common stock at
a purchase price of One Dollar ($1.00) per share. This option may be
exercised in whole or in part, but may only be exercised in lots of Ten
Thousand (10,000) shares or more. Employee shall not have any of the
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rights of, nor be treated as, a shareholder with respect to the shares
subject to this option until he has exercised the option and has become the
shareholder of record of those shares.
(b) This option is not assignable.
(c) This option may only be exercised by Employee during the term of
his employment hereunder. However, in the event that the employment term is
terminated by Employer for reasons other than cause, Employee shall retain
the right to exercise any unused portion of the option until June 1, 2001.
ARTICLE 6. EMPLOYEE BENEFITS
ANNUAL VACATION
Section 6.01. Employee shall be entitled to three (3) weeks vacation
time each year with full pay. Employee may be absent from his employment for
vacation only at such times as Employer's Board of Directors shall determine
from time to time. If Employee is unable for any reason to take the total
amount of authorized vacation time during any year, he may accrue that time
and add it to vacation time for any following year or may receive a cash
payment in any amount equal to the amount of annual salary attributable to
that period.
ILLNESS
Section 6.02. Employee shall be entitled to fifteen days per year as
sick leave with full payment.
DEATH BENEFITS
Section 6.03. If Employee should die during the employment term and if
Employee has a surviving spouse at that time, Employer agrees to pay the
spouse the sum of one-half (1/2) of the salary stated herein per month for
the remainder of the Employment Agreement.
MEDICAL COVERAGE
Section 6.04. Employer agrees to include Employee in the coverage of
its medical, major medical, hospital, dental, and eye care insurance, if any.
Employer further agrees to reimburse Employee for all medical and dental
expenses incurred by Employee, his souse, and those of his children who
qualify as his dependents under Section 152 of the Internal Revenue Code of
1986; provided, however, that those reimbursements shall be limited to the
expenses, or portions thereof, not covered by insurance.
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LIFE INSURANCE
Section 6.05.(a). At Employee's option, Employer agrees to obtain a
life insurance policy on the life of Employee in the face amount of
$250,000.00. Employer further agrees to make that insurance policy payable to
the beneficiary or beneficiaries designated by Employee. Employer agrees to
pay all premiums on the policy during the term of employment provided herein.
(b) Employee agrees to submit to a physical examination at any time
requested by Employer for the purpose of Employer's obtaining life insurance
on the life of Employee for the benefit of Employer; provided, however, that
Employer shall bear the entire cost of that examination.
ARTICLE 7. BUSINESS EXPENSES
USE OF CREDIT CARD
Section 7.01. All business expenses reasonably incurred by Employee in
promoting the business of Employer, including expenditures for entertainment,
gifts, and travel, are to be paid for, insofar as possible, by the use of
credit cards in the name of Employer which will be furnished to Employee.
REIMBURSEMENT OF OTHER BUSINESS EXPENSES
Section 7.02. (a). Employer shall promptly reimburse Employee for all
other reasonable business expenses incurred by Employee in connection with
the business of Employer.
(b) Each such expenditure shall be reimbursable only if it is of a
nature qualifying it as a proper deduction on the federal and state income
tax return of Employer.
(c) Each such expenditure shall be reimbursable only if Employee
furnishes to Employer adequate records and other documentary evidence
required by federal and state statutes and regulations issued by the
appropriate taxing authorities for the substantiation of each such
expenditure as an income tax deduction.
REPAYMENT OF DISALLOWED EXPENSES
Section 7.03. In the event that any expenses paid for Employee or any
reimbursement of expenses paid to Employee shall, on audit or other
examination of Employer's income tax returns, be determined not to be
allowable deductions from Employer's gross income, and in the further event
that this determination shall be acceded to by the Employer or made final by
the
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appropriate federal or state taxing authority or a final judgment of a court
of competent jurisdiction, and no appeal is taken from the judgment or the
applicable period for filing notice of appeal has expired, Employee shall
repay to Employer the full amount of the disallowed expenses.
ARTICLE 8. TERMINATION OF EMPLOYMENT
TERMINATION FOR CAUSE
Section 8.01. (a) Employer reserves the right to terminate this
agreement if Employee wilfully breaches or habitually neglects the duties
which he is required to perform under the terms of this agreement; or commits
such acts of dishonesty, fraud, misrepresentation or other acts of moral
turpitude as 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 forty-five (45) days 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 all
relevant facts.
(d) Termination under this section shall be considered "for cause" for
the purposes of this agreement.
TERMINATION WITHOUT CAUSE
Section 8.02 (a) This agreement shall be terminated upon the death of
Employee.
(b) Employer reserves the right to terminate this agreement not less
than six (6) months after Employee 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 Employee. Termination pursuant to this provision
shall not prejudice Employee's rights to continued compensation pursuant to
Article 4 of this agreement.
(c) Termination under this section shall not be considered "for cause"
for the purposes of this agreement.
EFFECT OF MERGER, TRANSFER OF ASSETS, OR DISSOLUTION
Section 8.03 (a) This agreement shall be terminated by any voluntary or
involuntary dissolution of Employer; provided, however, that if said
dissolution is the result of either a
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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, then at the option of Employee, he shall be entitled to
be paid the balance remaining under this agreement as a condition precedent
to the above-specified events.
PAYMENT ON TERMINATION
Section 8.04. Notwithstanding any provision of this agreement, if
Employer terminates this agreement at any time prior to its expiration
regardless of cause, it shall pay Employee, as a condition thereof, an amount
equal to one and one-half (1 1/2) years annual salary at the then current
rate of compensation.
TERMINATION BY EMPLOYEE
Section 8.06. Employee may terminate his obligations under this
agreement by giving Employer at least a two (2) months notice in advance.
ARTICLE 9. GENERAL PROVISIONS
NOTICES
Section 9.01. All notices 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. Notices shall be addressed to:
Nurescell, Inc.
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Facsimile:
Xxxxxx Xxxxxx
00000 Xxxxxxxx Xxxxxx
Xxxxxx Xxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
ATTORNEYS' FEES AND COSTS
Section 9.02. If any legal action based in contract law is necessary to
enforce or interpret the terms of this agreement, the prevailing party shall
be entitled to reasonable attorneys' fees, costs, and necessary disbursements
in addition to any other relief to which that party may be entitled. This
provision shall be construed as applicable to the entire contract.
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ENTIRE AGREEMENT
Section 9.03. This agreement supersedes any and all other agreements,
either oral or in writing, between the parties hereto with respect to the
employment of Employee by Employer and contains all of the covenants and
agreements between the parties with respect to that employment in any manner
whatsoever. Each party to this agreement acknowledges that no
representation, inducements, promises, or agreements, orally or otherwise,
have been made by any party, or anyone acting on behalf of any party, which
are not embodied herein, and that no other agreement, statement, or promise
not contained in this agreement shall be valid or binding on either party.
MODIFICATIONS
Section 9.04. Any modification of this agreement will be effective only
if it is in writing and signed by the party to be charged.
EFFECT OF WAIVER
Section 9.05. The failure of either party to insist on strict
compliance with any of the terms, covenants, or conditions of this agreement
by the other party shall not be deemed a waiver of that term, covenant, or
condition, nor shall any waiver or relinquishment of any right or power at
any one time or times be deemed a waiver or relinquishment of that right or
power for all or any other times.
PARTIAL INVALIDITY
Section 9.06. 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.
LAW GOVERNING AGREEMENT
Section 9.07. 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.
SUMS DUE DECEASED EMPLOYEE
Section 9.08. 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.
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ARTICLE 10. APPROVAL OF THE BOARD OF DIRECTORS
Section 10.01. 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 11. COUNTERPARTS; EXECUTION BY FACSIMILE
Section 11.01. 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 XXXXXX
By
-----------------------------
Chairman of the Board
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