CONSULTING AGREEMENT
This
Consulting Agreement (the “Agreement”) is entered into as of April 19, 2006, by
and between between UKARMA CORPORATION, with its principal office located at 000
Xxxxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000 (the “Company”) and XX. XXXX XXXXXX
residing at 0000 Xxxx Xxxxxxxxx Xxxxxx, Xxxx Xxxxxxxxxx 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, and Consultant desires to
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 strategic advisory services
as reasonably requested by the Company in connection with the Company’s
execution of its business plan and entering into various business arrangements
time to time (the “Services”). Without limiting the foregoing,
Consultant shall use his reasonable best efforts to render such Services to the
Company and further the Company’s interests. 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 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 six (6) months commencing as
of the date hereof (the “Term”).
Consultant
will be compensated by the payment by the Company of Ten Thousand Dollars
($10,000). The Company has concurrently herewith paid the aforementioned fee.
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.
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.
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. Entire
Understanding. This
Agreement and that certain other Consulting Agreement entered into between the
Company and Consultant dated the same date as this Agreement 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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).
12. 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
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By: /s/
Xxxx
Xxxxxx
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Xxxx Xxxxxx, Chief Executive
Officer
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/s/ Xxxx
Xxxxxx
XXXX XXXXXX
ADDENDUM
TO CONSULTING AGREEMENT
RESTRICTED
STOCK GRANT
In
consideration of Consultant entering into the Consulting Agreement and agreeing
to provide the “Services” thereunder, the Company hereby grants to
Consultant:
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1.
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two
hundred fifty thousand shares (250,000) shares of the Company’s Common
Stock, which shall be fully-vested as of the date hereof;
and
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2.
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options
to purchase two hundred fifty thousand (250,000) shares of the Company’s
Common Stock, with an exercise price of $.20 per share, which shall be
issued under and governed by the Company’s 2006 Stock Option, Deferred
Stock and Restricted Stock Plan (the “Plan”). The options shall be subject
to vesting and become exercisable pro-ratably every six months from the
date of grant over the term of the Consulting Agreement (with the first
1/6 vesting occurring on the 6-month anniversary of the date of the
Consulting Agreement).
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The
options and shall expire in five (5) years from the date of grant, subject to
immediate termination of all unvested options upon any termination of
Consultant’s engagement under the Consulting Agreement, and early termination of
vested options upon death, disability or other termination of Consultant’s
engagement by the Company as set forth in the Plan.
