CONSULTING AGREEMENT BETWEEN IVC Group AND ESSENTIAL REALITY, INC.
This Consulting Agreement (the "Agreement") is made as of the [ ] day of
June 2004 by and between Essential Reality, Inc. (the "Company") and IVC Group,
a Cayman Island corporation, with an address at 802 Grand Pavilion 1st Floor,
P.O. Box 30543 SMB, Grand Cayman, Cayman Islands, BWI (the "Consultant").
WHEREAS, the Company wishes to engage Consultant to advise the Company and
Consultant wishes to accept such engagement, all upon the terms and subject to
the conditions contained in this Agreement;
NOW, THEREFORE, the parties hereto, in consideration of the mutual
consideration and promises contained herein and intending to be bound, hereby
agree as follows:
1. Appointment. The Company hereby appoints Consultant, and Consultant
agrees to serve as, consultant to the Company, all upon the terms, and subject
to the conditions of this Agreement.
2. Term. The term of this Agreement shall begin on the date first set
forth above and shall continue until June 30, 2005.
3. Duties of Consultant. Consultant shall advise the Company concerning
operational, financial and management matters. Consultant shall render such
advice and assistance as the Company may reasonably request of him pursuant to
such duties.
4. Compensation. In consideration of, and in full payment for, entering
into this Agreement, the Company shall pay Consultant a fee of $60,000, payable
in the Company's Series A Convertible Non Redeemable Preferred Shares at a price
of $3.56 per Preferred Share. Consultant shall be responsible for all travel and
other related expenses incurred by Consultant in connection with the performance
of his consulting duties hereunder, unless otherwise consented to in writing in
advance by the Company.
5. Status as Independent Contractor. The parties intend and acknowledge
that Consultant is acting as an independent contractor and not as an employee of
the Company. Consultant shall have full discretion in determining the amount of
time and activity to be devoted to rendering the services contemplated under
this Agreement and the level of compensation to Consultant is not dependent upon
any preordained time commitment or level of activity. The Company acknowledges
that Consultant shall remain free to accept other consulting engagements of a
like nature to the engagement under this Agreement. Consultant, however, hereby
undertakes to notify the Company in writing of any engagement undertaken by
Consultant that, in the view of Consultant, creates a conflict of interest with
the Company's engagement of Consultant. Nothing in this Agreement shall be
construed to create any partnership, joint venture or similar arrangement
between the Company and Consultant or to render either party responsible for any
debts or liabilities of the other.
6. Confidentiality.
(a) Consultant acknowledges that in connection with the services to
be rendered under this Agreement, Consultant may be provided with confidential
business information of the Company. Consultant agrees to keep any information
or materials specifically designated in writing by a responsible officer of the
Company as confidential (the "Confidential Information") in the strictest
confidence and not to disclose or disseminate any such Confidential Information
to any person, firm or other business entity except to those employees,
consultants or other independent contractors of the Company or Consultant as
shall be necessary or advisable for the carrying out of the purposes of this
Agreement and who are under a similar obligation of confidentiality.
(b) The Company acknowledges that Consultant may, in rendering the
services to be rendered hereunder, be utilizing materials that are proprietary
to Consultant. The Company acknowledges that any such materials that are
specifically designated in writing to the Company to be proprietary to
Consultant will remain the property of Consultant and the Company will treat
such materials as confidential information of Consultant and will not disclose
or disseminate any such confidential information to any person, firm or other
business entity except to those employees, consultants or other independent
contractors of the Company or Consultant as shall be necessary or advisable for
the carrying out of the purposes of this Agreement and who are under a similar
obligation of confidentiality.
7. Indemnification. The Company shall indemnify Consultant for any loss,
damage, expenses, claims or other liabilities (including, without limitation,
attorneys' fees) resulting from a breach or alleged breach of any of the
representations and warranties of the Company, or the failure of the Company to
perform any of its obligations, contained in this Agreement.
8. Amendments, Modifications, Waivers, Etc. No amendment or modification
to this Agreement, nor any waiver of any term or provision hereof, shall be
effective unless it shall be in a writing signed by the party against whom such
amendment, modification or waiver shall be sought to be enforced. No waiver of
any term or provision shall be construed as a waiver of any other term or
condition of this Agreement, nor shall it be effective as to any other instance
unless specifically stated in a writing conforming with the provisions of this
Paragraph 8.
9. Successors and Assigns. This Agreement shall be enforceable against any
successors in interest, if any, to the Company and Consultant. Neither the
Company nor Consultant shall assign any of their respective rights or
obligations hereunder without the written consent of the other in each instance.
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10. Notices. Any notices required or permitted to be given under this
Agreement shall be effective upon receipt at the respective addresses in the
recitals to this Agreement unless the address for notice to either party shall
have been changed by a notice given in accordance with this Paragraph 10.
11. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the substantive laws of the State of New York for contracts
executed and to be performed wholly within such state, without regard for
principals of conflicts of laws.
IN WITNESS WHEREOF, the parties hereto have set their respective hands as
of the date first above written.
ESSENTIAL REALITY, InC IVC Group
By:
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Xxxxxxx X. Xxxxxx III Xxxx Xxxxxxxx
Chairman of the Board
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