Exhibit 10.2
February 5, 2004
Xxxxxxx X. Xxxxxx III, Chairman
Essential Reality, Inc.
000 Xxxxxx Xxxx.
Xxxxxxx, XX 00000
RE: RETAINER AGREEMENT
Dear Chairman Xxxxxx:
This letter confirms that Gottbetter & Partners, LLP ("G&P") will
represent Essential Reality, Inc. (the "Company") as its special securities
counsel for the drafting and filing of: (i) a private placement offering
including registration rights, debt conversion and cancellation agreements,
voting proxy, consulting agreements, escrow agreement, merger agreement and
related corporate resolutions ("PPO") pursuant to the terms and conditions set
forth in that certain Term Sheet dated January 2004 between the Company and
AllianceCorner Distributors Inc.; (ii) a Form D with the Securities and Exchange
Commission ("SEC"); (iii) related "Blue Sky" documents with the states where
applicable (collectively the "SEC Documents"); and (iv) an Information and
Disclosure Statement on Form 211 ("OTC Listing") with the National Association
of Securities Dealers.
The Company agrees to pay G&P a flat fee for legal services in the
amount of $60,000 to be payable at the closing from the escrow of the PPO
contemplated above. All other legal services will be billed on an hourly basis
in accordance with the attached Schedule A, or on a flat fee basis. In either
case, the fee arrangement must be agreed upon in advance by the Company and G&P.
The Company will be billed monthly for any and all expenses that may be incurred
by G&P on behalf of the Company.
This Retainer Letter and Schedule A should be reviewed carefully. The
terms and conditions of our agreement for all legal services provided to the
Company by G&P are detailed on the attached Schedule A. Representation will
commence upon receipt of an executed copy of Page 2 of this letter. If you have
any questions, please do not hesitate to contact me.
Sincerely,
/s/ Xxxx X. Xxxxxxxxxx
------------------
Xxxx X. Xxxxxxxxxx, Esq.
Attachment
Chairman Xxxxxxx Xxxxxx
February 5, 2004
Page 2
All terms and conditions of this Retainer Agreement and attached
Schedule A between G&P and the Company are hereby agreed to and accepted as of
the date first above written.
Essential Reality, Inc. AllianceCorner Distributors Inc.,
Consent to payment at PPO closing
By: ____________________________ By: ___________________________
Title: ___________________________ Title: __________________________
Date: ___________________________ Date: __________________________
EIN: __________________________ EIN: __________________________
PAYMENT OPTIONS:
1. Please make checks payable to "Gottbetter & Partners, LLP."
2. Please charge my AMEX/VISA/MC (circle one)
account#________________________________ exp.____________ for
$_______________________. My signature authorizes and directs G&P to
process the requested charge to my account. The BILLING ADDRESS for
this credit card is as follows:
Signature: ______________________________________
Name: ______________________________________
Address: ______________________________________
Tel.: ______________________________________
3. Bank Name: Citibank, NA
000 Xxxxxxx Xxx.
Xxx Xxxx, XX 00000
ABA No.: 000000000
Account Name: Gottbetter & Partners, LLP
Account No.: 00000000
Reference: ESSR
PLEASE ADD A $25 BANK PROCESSING FEE.
SCHEDULE A
1. Any and all retainer amounts received by G&P from on behalf of the Company
for expenses and hourly fees will be deposited into an interest-bearing,
client-trust account. The Company hereby authorizes and directs G&P to deduct
any and all expenses and hourly fees incurred by G&P on behalf of the Company
for, and as a condition to, closing any of the Company's private placement
offerings, including but not limited to the PPO, and/or the filing of any
registration statement with the SEC, from any funds being held by G&P on behalf
of the Company. If any monies due G&P by the Company have not been paid at the
time of these events, then payment will be made by the Company to G&P upon
effectiveness of the registration statement. Any unused portion of the retainer
not applied to any fees or disbursements will be returned to the Company along
with any interest earned upon the completion or termination of G&P's
representation.
2. In the event the Company abandons the PPO and/or the OTC Listing at any time
and for any reason, the Company's liability for fees shall be limited to the
greater of legal fees received, or actual hours incurred by G&P at our then
current rates plus any and all expenses incurred by G&P on behalf of the
Company. Additionally, G&P reserves the right to terminate representation of the
Company for reasons including, but not limited to, the failure of the Company to
pay invoices within thirty (30) days of the date issued, and in this event, the
Company hereby waives its rights to oppose G&P's application, if applicable, to
be relieved as counsel. Any unpaid amounts due G&P will bear interest at sixteen
percent (16%) per annum commencing thirty (30) days from the date an invoice was
issued. In the event G&P commences legal action to recover any amounts due G&P
from the Company, the Company agrees to pay, in addition to the amounts set
forth above, reasonable attorney's fees and expenses incurred in collecting said
amounts.
3. For legal services provided by G&P to the Company for any and all other
matters not related to the SEC documents, including but not limited to SEC
compliance filings, the Company agrees to pay G&P at its usual hourly rates,
unless otherwise agreed upon in writing by G&P and the Company. G&P's corporate
rates currently are: Xxxx X. Xxxxxxxxxx, $425/hr.; Senior Associate Attorneys,
$400-$350/hr.; and Associate Attorneys, $325-$275/hr. In the event the Company
is billed for administrative services, G&P's rates currently are: $125/hr. for
paralegal assistance; $75/hr. for overnight secretary; and $65/hr. for clerical
support. G&P's hourly rates may change from time to time.
4. The Company will be billed monthly for expenses incurred on behalf of the
Company in connection with any and all other matters not related to the SEC
documents, including but not limited to filing fees, postage, document
production, copying, long distance telephone, overnight courier, printing and
Edgarizing. Each xxxx will specifically set forth the nature of each charge.
Payment of each invoice will be deducted from any retainer amount, if
applicable. Any legal fees detailed on page 1 of this Retainer Agreement do not
include any expenses incurred by G&P for, or on behalf of, the Company.
5. It is understood and agreed that in preparing any SEC Documents, G&P shall
rely entirely upon the Company for the accuracy, completeness and truth of all
factual statements to be set forth therein, and G&P shall not be obliged to the
Company to undertake an independent examination or verification thereof. The
Company further agrees to have its business books and records available for
inspection by G&P and to have all of its officers and key employees, as well as
consultants to the Company, available to answer any questions that G&P may have.
The Company represents and warrants that any information furnished by the
Company to G&P for preparation of the SEC Documents shall not contain any untrue
statement of material fact or shall not omit to state a material fact necessary
to make the statements contained in the SEC Documents, in light of the
circumstances under which they are made, not misleading.
6. In the event that G&P becomes involved in any action, proceeding,
investigation or inquiry in connection with any statements made or any
information set forth in the SEC Documents, or in the omission of factual
statements or information there from, the Company will reimburse G&P for any
reasonable legal fees and expenses (including the cost of any investigation and
preparation) as they are incurred by G&P in connection therewith. The Company
further agrees to indemnify G&P and hold G&P harmless against any losses,
claims, damages, fines or liabilities to which G&P may become subject to as a
result thereof, except that such indemnification shall not apply as a to G&P's
own negligence, bad faith and/or willful misconduct, and if such indemnification
were for any reason not to be available, to contribute to the losses, claims,
damages, fines and liabilities involved in such action, proceeding,
investigation or inquiry in the proportion that your interest bears to our
interest. Such indemnification and contribution shall extend to individual
partners, associates, contract and "of counsel" attorneys, and paralegal and
legal assistants who have participated in the preparation and/or review of the
SEC Documents, and such indemnification shall be in addition to any rights that
any such individual party may have at common law or otherwise.
7. The Company acknowledges the following:
a. By separate agreement, the Company has agreed to pay separate
compensation to Xxxxxxx Xxxxxxx, Inc. ("JSI") for certain services
specified therein. JSI is a corporation owned entirely by Xxxx
Xxxxxxxxxx, a partner in G&P. G&P's representation of the Company in
its dealings with JSI creates an actual conflict of interest on the
part of G&P.
b. The Company has been fully advised of the foregoing conflict of
interest, has been advised to seek the advice of independent counsel
in connection therewith, and has received such advice or has elected
not to do so.
c. Having discussed the foregoing conflict of interest and its
implications fully, and with the knowledge and consent of the
Company's Board of Directors duly obtained, the Company, being fully
informed, hereby waives the foregoing conflict of interest and
consents to the retention of G&P as set forth above. This waiver and
consent is intended to be retroactive to the extent G&P firm has
previously rendered any services addressed hereby.
8. In the event of a fee dispute, the Company may have the right to seek
arbitration in accordance with the New York State Fee Dispute Resolution Program
(the "Program"). G&P will provide the Company with the necessary information
regarding arbitration in the event of a fee dispute should the Company have the
right to seek arbitration. In all other instances, or where either party seeks
de novo review of the arbitration award (as provided in the Rules relating to
the Program), any action will be governed by New York law and will be determined
only by a state or federal court in the state of New York, and G&P and the
Company consent to the jurisdiction of such court for that purpose.
9. In the event of any such claim pursuant to Section 6 above, then the Company
shall have the right to assume the defense thereof and the Company shall not be
liable for any legal expenses of other counsel retained by G&P, except (i) if
the Company elects not to assume such defense on behalf of G&P and/or (ii) if
counsel for G&P determines that there are issues that raise conflicts of
interest between the Company and G&P. In such event, G&P may maintain separate
counsel satisfactory to G&P and the Company shall pay all reasonable fees and
expenses of such counsel for G&P promptly upon receipt of statements.
