Common use of EMPLOYMENT OF THE AGENT Clause in Contracts

EMPLOYMENT OF THE AGENT. In reliance upon the representations and warranties and subject to the terms and conditions of this Agreement: a) The Company employs the Agent as its exclusive agent to sell for the Company's account the Shares, on a cash basis only, at a price of $5.00 per Share. The Agent agrees to use its best efforts, as agent for the Company, to sell the Shares subject to the terms and conditions set forth in this Agreement. It is understood between the parties that there is no firm commitment by the Agent to purchase any or all of the Shares. b) The obligation of the Agent to offer the Shares is subject to receipt by it of written advice from the Commission that the Registration Statement is effective, is subject to the Shares being qualified for offering under applicable laws in the states as may be reasonably designated by the Agent, is subject to the absence of any prohibitory action by any governmental body, agency or official, and is subject to the terms and conditions contained in this Agreement and in the Registration Statement covering the offering to which this Agreement relates. c) The Company and the Agent agree that, unless all of the Shares to be offered are sold within ninety (90) days after the Effective Date (which period may be extended for an additional period not to exceed ninety (90) days by mutual agreement between the Company and the Agent), the agency between the Company and the Agent will terminate. If the agency between the Company and the Agent terminates, the full proceeds which have been paid for the Shares shall be returned to the purchasers. Prior to the sale of all of the Shares to be offered, all proceeds received from the sale of the Shares will be deposited in an escrow account entitled "Proformance Research Organization Escrow Account" with Bank Windsor, 000 Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000. d) The Company, the Agent and Bank Windsor will, prior to the beginning of the offering of the Shares, enter into a fund escrow agreement in form satisfactory to the parties. The parties mutually agree to faithfully perform their obligations under the fund escrow agreement. All checks related to the purchase of Shares offered herein shall be made payable to the Fund Escrow Agent, Bank Windsor. Agent shall transmit all checks for the purchase of Shares directly to the Fund Escrow Agent, Bank Windsor, by noon of the next business day after receipt in accordance with Rule 15(c)2-4 of the Securities Exchange Act of 1934, as amended. e) The Agent shall have the right to associate with other agents and dealers as it may determine and shall have the right to grant to such persons such concessions out of the commissions to be received by the Agent as the Agent may determine, under and pursuant to a Participating Dealer Agreement in the form filed as an exhibit to the Registration Statement. f) Subject to the sale of all of the Shares, the Company agrees to pay to the Agent an underwriting commission computed at the rate of $.50 (10% of the public offering price) for each of the Shares sold by the Agent at the public offering price of $5.00 per Share. Agent shall not be entitled to be paid an underwriting commission on shares sold to Weiner, Inc. pursuant to a July 15, 1998 Common Stock Purchase, as Amended ("Weiner Subscription Agreement"). This commission shall be payable in certified funds upon the release of the funds which have been deposited in the escrow account. g) The Company hereby grants to the Agent an Option (the "Option") for a period of thirty (30) days after Closing to sell at a purchase price of $5.00 per Share up to 150,000 additional Shares in order to cover over-allotments. The Company agrees to pay to the Agent an underwriting commission computed at the rate of $.50 (10% of the public offering price) for each of the Option Shares sold by the Agent at the public offering price of $5.00 per Share.

EMPLOYMENT OF THE AGENT. In reliance upon the representations and warranties and subject to the terms and conditions of this Agreement: a) The Company employs the Agent as its exclusive agent to sell for the Company's account the Shares, on a cash basis only, at a price of $5.00 per Share. The Agent agrees to use its best efforts, as agent for the Company, to sell the Shares subject to the terms and conditions set forth in this Agreement. It is understood between the parties that there is no firm commitment by the Agent to purchase any or all of the Shares. b) The obligation of the Agent to offer the Shares is subject to receipt by it of written advice from the Commission that the Registration Statement is effective, is subject to the Shares being qualified for offering under applicable laws in the states as may be reasonably designated by the Agent, is subject to the absence of any prohibitory action by any governmental body, agency or official, and is subject to the terms and conditions contained in this Agreement and in the Registration Statement covering the offering to which this Agreement relates. c) The Company and the Agent agree that, unless all of the Shares to be offered are sold within ninety (90) days after the Effective Date (which period may be extended for an additional period not to exceed ninety (90) days by mutual agreement between the Company and the Agent), the agency between the Company and the Agent will terminate. If the agency between the Company and the Agent terminates, the full proceeds which have been paid for the Shares shall be returned to the purchasers. Prior to the sale of all of the Shares to be offered, all proceeds received from the sale of the Shares will be deposited in an escrow account entitled "Proformance Research Organization Escrow Account" with Bank Windsor, 000 Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000. d) The Company, the Agent and Bank Windsor will, prior to the beginning of the offering of the Shares, enter into a fund escrow agreement in form satisfactory to the parties. The parties mutually agree to faithfully perform their obligations under the fund escrow agreement. All checks related to The Agent will promptly deliver the purchase of Shares offered herein shall be made payable to funds into the Fund Escrow Agent, Bank Windsor. Agent shall transmit all checks for the purchase of Shares directly to the Fund Escrow Agent, Bank Windsor, by noon of the next business day after receipt escrow account in accordance with Rule 15(c)2-4 of the Securities Exchange Act of 1934, as amendedamended but in any event not to exceed five (5) business days after receipt of such funds. e) The Agent shall have the right to associate with other agents and dealers as it may determine and shall have the right to grant to such persons such concessions out of the commissions to be received by the Agent as the Agent may determine, under and pursuant to a Participating Dealer Agreement in the form filed as an exhibit to the Registration Statement. f) Subject to the sale of all of the Shares, the Company agrees to pay to the Agent an underwriting commission computed at the rate of $.50 (10% of the public offering price) for each of the Shares sold by the Agent at the public offering price of $5.00 per Share. Agent shall not be entitled to be paid an underwriting commission on shares sold directed by Company, not to Weiner, Inc. pursuant to a July 15, 1998 Common Stock Purchase, as Amended ("Weiner Subscription Agreement")exceed 600,000 of the Shares. This commission shall be payable in certified funds upon the release of the funds which have been deposited in the escrow account. g) The Company hereby grants to the Agent an Option (the "Option") for a period of thirty (30) days after Closing to sell at a purchase price of $5.00 per Share up to 150,000 additional Shares in order to cover over-allotments. The Company agrees to pay to the Agent an underwriting commission computed at the rate of $.50 (10% of the public offering price) for each of the Option Shares sold by the Agent at the public offering price of $5.00 per Share.

EMPLOYMENT OF THE AGENT. In reliance upon the representations and warranties and subject to the terms and conditions of this Agreement: a) The Company employs the Agent as its exclusive agent to sell for the Company's account the Shares, on a cash basis only, at a price of $5.00 per Share. The Agent agrees to use its best efforts, as agent for the Company, to sell the Shares subject to the terms and conditions set forth in this Agreement. It is understood between the parties that there is no firm commitment by the Agent to purchase any or all of the Shares. b) The obligation of the Agent to offer the Shares is subject to receipt by it of written advice from the Commission that the Registration Statement is effective, is subject to the Shares being qualified for offering under applicable laws in the states as may be reasonably designated by the Agent, is subject to the absence of any prohibitory action by any governmental body, agency or official, and is subject to the terms and conditions contained in this Agreement and in the Registration Statement covering the offering to which this Agreement relates. c) The Company and the Agent agree that, unless all of the Shares to be offered are sold within ninety (90) days after the Effective Date (which period may be extended for an additional period not to exceed ninety (90) days by mutual agreement between the Company and the Agent), the agency between the Company and the Agent will terminate. If the agency between the Company and the Agent terminates, the full proceeds which have been paid for the Shares shall be returned to the purchasers. Prior to the sale of all of the Shares to be offered, all proceeds received from the sale of the Shares will be deposited in an escrow account entitled "Proformance Research Organization Escrow Account" with Bank Windsor, 000 Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000. d) The Company, the Agent and Bank Windsor will, prior to the beginning of the offering of the Shares, enter into a fund escrow agreement in form satisfactory to the parties. The parties mutually agree to faithfully perform their obligations under the fund escrow agreement. All checks related to The Agent will promptly deliver the purchase of Shares offered herein shall be made payable to funds into the Fund Escrow Agent, Bank Windsor. Agent shall transmit all checks for the purchase of Shares directly to the Fund Escrow Agent, Bank Windsor, by noon of the next business day after receipt escrow account in accordance with Rule 15(c)2-4 of the Securities Exchange Act of 1934, as amendedamended but in any event not to exceed five (5) business days after receipt of such funds. e) The Agent shall have the right to associate with other agents and dealers as it may determine and shall have the right to grant to such persons such concessions out of the commissions to be received by the Agent as the Agent may determine, under and pursuant to a Participating Dealer Agreement in the form filed as an exhibit to the Registration Statement. f) Subject to the sale of all of the Shares, the Company agrees to pay to the Agent an underwriting commission computed at the rate of $.50 (10% of the public offering price) for each of the Shares sold by the Agent at the public offering price of $5.00 per Share. Agent shall not be entitled to be paid an underwriting commission on shares sold to Weiner, Inc. pursuant to a July 15, 1998 Common Stock Purchase, as Amended ("Weiner Subscription Agreement"). This commission shall be payable in certified funds upon the release of the funds which have been deposited in the escrow account. g) The Company hereby grants to the Agent an Option (the "Option") for a period of thirty (30) days after Closing to sell at a purchase price of $5.00 per Share up to 150,000 additional Shares in order to cover over-allotments. The Company agrees to pay to the Agent an underwriting commission computed at the rate of $.50 (10% of the public offering price) for each of the Option Shares sold by the Agent at the public offering price of $5.00 per Share.

EMPLOYMENT OF THE AGENT. In reliance upon the representations and warranties and subject to the terms and conditions of this Agreement: a) The Company employs and Selling Shareholder employ the Agent as its their exclusive agent to sell for the Company's account the Shares, on a cash basis only, at a price of $5.00 4.00 per Share. The Agent agrees to use its best efforts, as agent for the CompanyCompany and Selling Shareholder, to sell the Shares subject to the terms and conditions set forth in this Agreement. It is understood between the parties that there is no firm commitment by the Agent to purchase any or all of the Shares. b) The obligation of the Agent to offer the Shares is subject to receipt by it of written advice from the Commission that the Registration Statement is effective, is subject to the Shares being qualified for offering under applicable laws in the states as may be reasonably designated by the Agent, is subject to the absence of any prohibitory action by any governmental body, agency or official, and is subject to the terms and conditions contained in this Agreement and in the Registration Statement covering the offering to which this Agreement relates. c) The Company Company, Selling Shareholder and the Agent agree that, unless all of the Shares to be offered are sold within ninety (90) days after the Effective Date (which period may be extended for an additional period not to exceed ninety (90) days by mutual agreement between the Company and the Agent), the agency between the Company and the Agent will terminate. If the agency between the Company and the Agent terminates, the full proceeds which have been paid for the Shares shall be returned to the purchasers. Prior to the sale of all of the Shares to be offered, all proceeds received from the sale of the Shares will be deposited in an escrow account entitled "Proformance Research Organization Escrow AccountPhysical Spa & Fitness" with Bank Windsor, 000 Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000. d) The Company, Selling Shareholder, the Agent and Bank Windsor will, prior to the beginning of the offering of the Shares, enter into a fund escrow agreement in form satisfactory to the parties. The parties mutually agree to faithfully perform their obligations under the fund escrow agreement. All checks related to The Agent will promptly deliver the purchase of Shares offered herein shall be made payable to funds into the Fund Escrow Agent, Bank Windsor. Agent shall transmit all checks for the purchase of Shares directly to the Fund Escrow Agent, Bank Windsor, by noon of the next business day after receipt escrow account in accordance with Rule 15(c)2-4 of the Securities Exchange Act of 1934, as amendedamended but in any event not to exceed five (5) business days after receipt of such funds. e) The Agent shall have the right to associate with other agents and dealers as it may determine and shall have the right to grant to such persons such concessions out of the commissions to be received by the Agent as the Agent may determine, under and pursuant to a Participating Dealer Agreement in the form filed as an exhibit to the Registration Statement. f) Subject to the sale of all of the Shares, the Company agrees and Selling Shareholder agree to pay to the Agent an underwriting commission computed at the rate of $.50 .40 (10% of the public offering price) for each of the Shares sold by the Agent at the public offering price of $5.00 4.00 per Share. Agent shall not be entitled to be paid an underwriting commission on shares sold to Weiner, Inc. pursuant to a July 15, 1998 Common Stock Purchase, as Amended ("Weiner Subscription Agreement"). This commission shall be payable in certified funds upon the release of the funds which have been deposited in the escrow account. g) The Company hereby grants to the Agent an Option (the "Option") for a period of thirty (30) days after Closing to sell at a purchase price of $5.00 per Share up to 150,000 additional Shares in order to cover over-allotments. The Company agrees to pay to the Agent an underwriting commission computed at the rate of $.50 (10% of the public offering price) for each of the Option Shares sold by the Agent at the public offering price of $5.00 per Share.