CONSULTING AGREEMENT
This
CONSULTING AGREEMENT ("Agreement") is made and entered into as of February
28,
2006 by and between UKARMA CORPORATION, with its principal executive office
located at 00 Xxxxx Xxxxxx Xxxx #00X, Xxx Xxxx, XX 00000 (the “Company”)
and
XX. XXX XXXXXX of 00 Xxxxxx Xxxxx Xxxxx, Xxxxxxxxx XX 00000 (the "Consultant").
WHEREAS,
the Company is seeking to produce video and/or DVD projects related to health,
yoga or wellness subject matter and is also seeking to license health-related
proprietary technology (collectively, the "Business"),
and
wishes to engage Consultant as a consultant for the Company to assist it in
the
Business;
WHEREAS,
Consultant desires to act a consultant to the Company;
WHEREAS,
it is a condition precedent to the Company’s engagement of Consultant, that he
first enter into this Agreement with the Company;
WHEREAS,
Consultant desires to enter into this Agreement and satisfy such
condition;
NOW,
THEREFORE, for other good and valuable consideration the sufficiency of which
is
hereby acknowledged, the parties hereto hereby agree as follows:
1. Consulting
Terms. Consultant
is hereby retained to provide business, consulting and advisory services and
market research as reasonably requested by the Company in the various strategic
and operational issues regarding the Company (the “Services”).
Without
limiting the foregoing, Consultant shall use his reasonable best efforts to
introduce the Company to third parties with resources or contacts that will
assist the Company in the Business (including without limitation, contract
manufacturers, marketing resources and various strategic relationships). The
Company and Consultant expect
to
have regular telephonic conversations and personal meetings on an as-needed
basis in connection with Consultant’s providing of the Services, and Company
will provide Consultant with updates on latest corporate events and
developments. Consultant may engage in other business activities during and
after the Term. Consultant
will not be an employee of the Company, but instead an independent contractor
of
the Company. The term of this Agreement, and the consulting arrangement
described herein, shall be twenty-four (24) months commencing as of the date
hereof (the “Term”).
Consultant
will be compensated with 675,000 shares of unregistered Company common stock,
which are fully-paid and non-assessable (the “Shares”).
The
Company has concurrently herewith delivered to Consultant a stock certificate
representing the Shares, which certificate bears a restrictive securities legend
on the reverse side (prohibiting the sale or transfer of the Stock except
pursuant to an effective Registration Statement filed with the Securities and
Exchange Commission or pursuant to an applicable exemption under State and
Federal securities laws). The Company shall reimburse Consultant, for his
reasonable out-of-pocket expenses incurred in connection with providing the
Services contemplated herein (but for any air-travel requested
by the Company, the Company will book and pay for coach or business-class
airfare tickets for Consultant); provided,
however, that as a condition to any such reimbursement Consultant will obtain
the Company’s prior written approval for (1) any expense individually in excess
of $250 or (2) all expenses in excess of an aggregate of $5,000 incurred since
the date of this Agreement.
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The
Company may terminate this Agreement at any time upon written notice for “Cause”
or due to a “Disability.” “Cause” shall mean: (i) a material act of dishonesty
by Consultant which has an adverse effect on the Company; (ii) the Consultant’s
conviction of, or plea of nolo contender to, a felony or a crime involving
moral
turpitude; (iii) the Consultant’s gross misconduct (which could have a material
adverse effect on the Company); or (iv) Consultant’s failure to provide the
consulting services required hereunder, which failure is not cured within the
30
days following notice thereof by the Company. Consultant will be deemed to
be
suffering from a “disability” upon the earlier of (i) the end of a three (3)
consecutive month period during which, by reason of physical or mental injury
or
disease, Consultant has been unable to perform substantially all of Consultant’s
usual and customary duties under this Agreement or (ii) the date that a
reputable physician selected jointly by the Company and Consultant (or if
Consultant is clearly unqualified to make such selection, the person then
authorized to make health care decisions for Consultant) determines in writing
that Consultant will, by reason of physical or mental injury or disease, be
unable to perform substantially all of Consultant’s usual and customary duties
under this Agreement for a period of at least three (3) consecutive months.
(If
any question arises as to whether Consultant is disabled, upon reasonable
request therefor by the Company, Consultant shall submit to a medical
examination for the purpose of determining the existence, nature and extent
of
any such “disability.”)
2. Confidential
Information & Inventions.
Consultant acknowledges that because of his consulting engagement by the
Company, he will be in a confidential relationship with the Company and will
have access to confidential information and secrets of the Company and those
interacting or doing business with the Company. Accordingly Consultant agrees
that concurrent herewith Consultant will enter into the Company’s Consultant
Proprietary Information and Inventions Agreement in
the
form attached hereto as Exhibit
A.
3. Indemnification.
The
Company shall indemnify, defend and hold harmless Consultant from and against
all claims, damages, losses and expenses (including reasonable attorneys' fees,
costs, expanses and disbursements), arising out of the performance by the
Consultant of its duties pursuant to this Agreement.
4. Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument.
5. Headings.
The
headings herein are for convenience only, do not constitute a part of this
Agreement, and shall not be deemed to limit or affect any of the provisions
hereof.
6. Entire
Understanding.
This
Agreement and the Exhibits hereto constitutes the entire agreement and
understanding between the parties with respect to the engagement of Consultant
by the Company, and supersedes all prior or other agreements, representations
and understandings, both written and oral, between the parties hereto with
respect to the subject matter hereof.
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7. Amendments.
This
Agreement may not be modified or changed except by written instrument signed
by
all of the parties hereto. No provision of this Agreement shall be modified
or
construed by any practice that is inconsistent with such provision, and failure
by either party to require the other party to comply with any provision shall
not affect a party’s rights to thereafter require the other party to
comply.
8. Attorneys'
Fees.
If any
action is brought to enforce or interpret any part of this Agreement or any
other agreement or instrument provided for herein or the rights or obligations
of any party to this Agreement or such other agreement or instrument, the
prevailing party in such action shall be entitled to recover as an element
of
such party's costs of suit, and not as damages, its attorney's fee in such
action. The prevailing party shall be the party who is entitled to recover
its
costs of suit as ordered by the court or by applicable law or court rules.
A
party not entitled to recover its costs shall not recover attorney's fees.
9. Governing
Law.
This
Agreement shall be construed (both as to validity and performance) and enforced
in accordance with and governed by the laws of the State of New York applicable
to agreements made and to be performed wholly within such jurisdiction,
notwithstanding any choice of law principles, statutes or rules to the contrary.
Any rule of law or any legal decision that would require interpretation of
any
ambiguities in this Agreement against the party that drafted it, is of no
application and is hereby expressly waived. The provisions of this Agreement
shall be interpreted in a reasonable manner to effect the intentions of the
parties and this Agreement. The parties agree that all actions or proceedings
arising in connection with this Agreement shall be litigated only in the state
and federal courts located in the City of New York, State of New York.
10. Construction.
Whenever
in this Agreement the context so requires, references to the masculine shall
be
deemed to include feminine and the neuter, references to the neuter shall be
deemed to include the masculine and feminine, and references to the plural
shall
be deemed to include the singular and the singular to include the
plural.
11. Cooperation.
Each
party hereto shall reasonably cooperate with the other party and shall take
such
further reasonably action and shall execute and deliver such further documents
as may be reasonably necessary or desirable in order to carry out the provisions
and purposes of this Agreement.
12. Waiver.
No
amendment or waiver of any provision of this Agreement shall in any event be
effective, unless the same shall be in writing and signed by the parties hereto,
and then such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given. The failure to insist in any
one
or more instances, upon performance of any of the terms, covenants or conditions
of this Agreement shall not be construed as a waiver or relinquishment of any
rights granted hereunder or any such term, covenant or condition.
13. Parties
in Interest; Assignment.
This
Agreement shall inure to the benefit of the Company and its successors and
assigns, and shall be binding upon Consultant. This Agreement may not be
assigned by Consultant; and, this Agreement may be assigned by the Company
with
Consultant’s consent (which will not be unreasonably withheld).
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14. Severability.
If any
provision of this Agreement shall be deemed invalid, unenforceable or illegal,
then notwithstanding such invalidity, unenforceability or illegality the
remainder of this Agreement shall continue in full force and
effect.
15. Full
Understanding.
Consultant represents and agrees that he fully understands his right to discuss
all aspects of this Agreement with his private attorney, and that to the extent,
if any, that he desired, he availed himself of this right. Consultant further
represents that he has carefully read and fully understands all of the
provisions and effects of the Agreement, that he is competent to execute this
Agreement, that his agreement to execute this Agreement has not been obtained
by
any duress and that he freely and voluntarily enters into it, and that he has
read this document in its entirety and fully understands the meaning, intent
and
consequences of this document.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date
first written above.
UKARMA
CORPORATION
By:
Xxxx Xxxxxx, Chief Executive Officer
XXX
XXXXXX
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