CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is made as of this day of
September, 1999 by and between International Cosmetics Marketing Co., a Florida
corporation (the "Company"), with its principal place of business to be located
at 0000 X.X. Xxxx xx Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000
and Viking Holding Company, with an address of 0000 Xxxxxxxxx Xxx,
Xxxxxxxxxxxxx, Xxxxxxx 00000 (the "Consultant").
R E C I T A L S:
WHEREAS, Consultant has extensive contacts and experience in
multi-level network marketing of consumer products; and
WHEREAS, the Company is in the business of developing, marketing and
distributing consumer products particularly at this time cosmetics using the
name and image of "Xxxxxxx Xxxxxxx"; and;
WHEREAS, the Company desires to engage Consultant and Consultant
desires to be engaged as a consultant to the Company on the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual promises set forth
herein and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as follows:
1. Consulting Services. During the term of this Consulting Agreement,
Consultant shall provide advice to, undertake for and consult with the Company
concerning management, network marketing, strategic planning, corporate
organization and structure, recruiting experienced personnel and financial
matters in connection with the general sales, marketing and operation of the
business and products of the Company and expansion of services and products, and
shall review and advise the Company regarding its overall progress, needs and
condition ("Consultant Duties"). The Consultant agrees to provide on a timely
basis the following enumerated services plus any additional services
contemplated thereby.
(a) The implementation of short range and long term strategic
planning to fully develop and enhance the Company's assets,
resources, products and services;
(b) The implementation of a marketing program to enable the
Company to broaden the markets for its products and products
and promote the image of the Company and its business and
products;
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(c) The undertaking of training programs to enhance the sales
and promotional skills of key marketing employees and
independent contractors of the Company;
(d) As may from time to time be agreed upon in writing, study
the products, of the Company and conduct market surveys for
the products in order to maintain market share and market
penetration;
(e) Prepare preliminary plans for marketing and advertising
the Company's product including responsibility for creative
design and lay-out of all marketing materials;
(f) Prepare rough or finished lay-outs as required and all
actual copy to be used in advertisements of all types,
including radio and television scripts and media
presentations;
(g) Assist the Company in the monitoring of services provided
by the Company's advertising firm, public relations firm and
other professionals to be employed by the Company;
(h) Advise the Company relative to the continued development
of a customer relations program;
(i) Advise the Company relative to the recruitment and
employment of personnel consistent with the marketing and
expansion of operations and products of the Company; and
(j) Advise and recommend to the Company additional products
relating to the present business of the Company.
The Consultant shall provide such consulting services as reasonably may be
required in order for the Consultant to achieve the goals contemplated by the
preceding sentence and Section 4 of this Agreement. The Consultant shall be
responsible to, and shall report to, the Company's Board of Directors.
2. Term. The term of this Agreement shall be for 12 months commencing
on the date first written above. Thereafter, this Agreement may be renewed for a
subsequent term of 12 months upon the mutual written agreement of the parties.
3. Compensation. As compensation for Consultant performing Consultant's
Duties, Consultant shall receive 200,000 shares of common stock of the Company
(the "Common Stock"). These shares of Common Stock shall be deemed earned
subject to divestiture pursuant to paragraph 4 of this Agreement.
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The Common Stock has not been registered under the Securities Act of
1933, as amended (the "Act"), or the laws of any state and may not be resold
unless the Common Stock is registered under the Act or an exemption from such
registration is available. The Consultant is acquiring the Common Stock for its
own account, for investment, and not with a view to the sale or distribution.
Each certificate representing the Common Stock will have a legend thereon
incorporating language as follows:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the "Act").
The securities have been acquired for investment and may not be sold or
transferred in the absence of an effective Registration Statement for
the securities under the Act unless in the opinion of counsel,
satisfactory to the Company, registration is not required under the
Act."
4. Performance Goals. The Consultant agrees that the shares of Common
Stock issued as full compensation for services rendered under this Agreement are
subject to waiver and forfeiture, termination and cancellation in the event
Consultant has not attained certain agreed financial and service goals as
determined by the Company's Board of Directors. The financial and service goals
shall be based upon the following having occurred no later than 12 months from
the date hereof: (i) the Company having attained sales in excess of $5,000,000;
and (ii) the Company having at least 5,000 distributors. Accordingly, in the
event the Consultant does not attain such goals, Consultant will be entitled to
no consideration related to this Agreement for the term hereof and agrees to
return and forfeit the shares of Common Stock to the Company. The Consultant
further agrees that the shares of Common Stock will be held in escrow pending
fulfillment of the performance goals set forth herein pursuant to an Escrow
Agreement dated the date hereof and attached hereto as Exhibit A, between the
Company, Consultant and Atlas, Xxxxxxxx, Trop & Borkson, P.A. Notwithstanding
the foregoing, the Company may, in its sole discretion, waive the provisions of
this Paragraph 4 as it relates to attaining the service and financial goals.
5. Representations and Warranties of the Consultant. The Consultant
hereby represents and warrants that this Agreement and the transactions
contemplated hereunder have been duly and validly authorized by all requisite
action; that the Consultant has the full right, power and capacity to execute
and deliver this Agreement and perform its obligations hereunder; that the
execution and delivery of this Agreement and the performance by the Consultant
of its obligations pursuant to this Agreement do not constitute a breach of or a
default under any agreement or instrument to which the Consultant is a party or
by which it or any of its assets are bound; and that this Agreement, upon
execution and delivery of the same by the Consultant, will represent the valid
and binding obligation of the Consultant enforceable in accordance with its
terms. The representations and warranties set forth herein shall survive the
termination of this Agreement.
6. Confidentiality. The Consultant agrees that all non-public
information pertaining to the prior, current or contemplated business of the
Company constitutes
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valuable and confidential assets of the Company. Such information shall include,
without limitation, information relating to customer lists, products, product
formulas, intellectual property, patents, trademarks, trade secrets, financing
techniques and sources and such financial statements of the Company as are not
available to the public. Consultant, his employees, agents and representatives
shall hold all such information in trust and confidence for the Company and
shall not use or disclose any such information and shall be liable for damages
incurred by the Company as a result of the use or disclosure of such information
other than in furtherance of the Company's business.
7. Amendment or Assignment. No modification, waiver, amendment,
discharge or change of this Agreement shall be valid unless the same is
evidenced by a written instrument, executed by the party against which such
modification, waiver, amendment, discharge, or change is sought. This Agreement
is not assignable by the Consultant without the prior written consent of the
Company, which such consent may not be forthcoming.
8. Notices. All notices, demands or other communications given
hereunder shall be in writing and shall be deemed to have been duly given on the
day when delivered in person or transmitted by confirmed facsimile transmission
or on the third calendar day after being mailed by United States registered or
certified mail, return receipt requested, postage prepaid, to the addresses
herein above first mentioned or to such other address as any party hereto shall
designate to the other for such purpose in the manner herein set forth.
9. Relationship of the Parties. The relationship of the Consultant to
the Company shall be that of independent contractor, and not employee. The
Consultant shall have no authority to bind, and shall not undertake to bind, the
Company as to any third party.
10. Entire Agreement. This Agreement contains all of the understandings
and agreements of the parties with respect to the subject matter discussed
herein. All prior agreements, whether written or oral, are merged herein and
shall be of no force or effect.
11. Severability. The invalidity, illegality or unenforceability of any
provision or provisions of this Agreement will not affect any other provision of
this Agreement, which will remain in full force and effect, nor will the
invalidity, illegality or unenforceability of a portion of any provision of this
Agreement affect the balance of such provision. In the event that any one or
more of the provisions contained in this Agreement or any portion thereof shall
for any reason be held to be invalid, illegal or unenforceable in any respect,
this Agreement shall be reformed, construed and enforced as if such invalid,
illegal or unenforceable provision had never been contained herein.
12. Construction and Enforcement. This Agreement shall be construed in
accordance with the laws of the State of Florida, without and application of the
principles of conflicts of laws. Any suit, action or proceeding with respect to
this Agreement shall be
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brought in the state or federal courts located in Broward County in the State of
Florida. The parties hereto hereby accept the exclusive jurisdiction and venue
of those courts for the purpose of any such suit, action or proceeding. The
parties hereto hereby irrevocably waive, to the fullest extent permitted by law,
any objection that any of them may now or hereafter have to the laying of venue
of any suit, action or proceeding arising out of or relating to this Agreement
or any judgment entered by any court in respect thereof brought in Broward
County, County Florida, and hereby further irrevocably waive any claim that any
suit, action or proceeding brought in Broward County, Florida, has been brought
in an inconvenient forum.
13. Binding Nature, No Third Party Beneficiary. The terms and
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties, and their respective successors and assigns, and is made solely and
specifically for their benefit. No other person shall have any rights, interest
or claims hereunder or be entitled to any benefits under or on account of this
Agreement as a third-party beneficiary or otherwise.
14. Counterparts. This Agreement may be executed in any number of
counterparts, including facsimile signatures which shall be deemed as original
signatures. All executed counterparts shall constitute one Agreement,
notwithstanding that all signatories are not signatories to the original or the
same counterpart.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
INTERNATIONAL COSMETICS MARKETING CO.
By: /s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx, Chief Financial Officer
VIKING HOLDING COMPANY
By: /s/ Xxxx Xxxx
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Xxxx Xxxx
Title: Managing Partner
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