Consulting Agreement
This Consulting Agreement (the Agreement) is entered into effective
the 1st day of September, 2008, between TheraBiogen, Inc., a Nevada
corporation (the ?Company), and The Turnaround Group, LLC. a Colorado limited
liability company (the ?Consultant?) for the purpose of engaging the
Consultant to advise and assist the Company in the management and operations
of the Company.
1. Services. The Consultant shall provide consulting and advisory
services and assistance to the Company, including executive management,
assistance in structuring acquisitions, and similar services, as well as
supervising the maintenance of the corporate and financial books and records
of the Company, and such other duties and functions as may be required or as
directed by the Board of Directors of the Company. In addition to these
Services, the Consultant shall designate a qualified representative to serve
as part-time consulting President and Chief Executive Officer, who shall also
serve as a member of the Board of Directors of the Company, at no additional
cost or expense to the Company other than the Compensation to Consultant set
forth in Section 5 hereof, and shall execute all required regulatory filings
for the Company as CEO.
2. Additional Services. It is understood and agreed that this agreement
and the Services to be provided hereunder are to be provided to the Company,
and that any services, consulting, advice or other work performed or to be
performed for any affiliated company, acquisition target or other entity by
Consultant or any agent or representative of Consultant at the request of the
Company or its affiliates shall be the subject of a separate consulting
agreement with such portfolio company, acquisition target or other entity.
3. Confidentiality of Services. Introductions to and use of
professionals and other consultants made by the Consultant will be considered
exclusive for purposes of this Agreement. Documents prepared by Consultant
in connection with this Agreement and the services provided shall not be
disclosed or given to third parties, without prior approval from Consultant,
except as required by SEC rules and regulations relating to filing and
disclosure or otherwise required to be disclosed by law or administrative or
judicial process. Notwithstanding the foregoing, any corporate document
(minutes, committee charter, policy statement, etc.) once adopted by the
Company shall not be confidential information and may be disclosed by the
Company as it deems appropriate.
4. Information provided by the Company. In connection with Consultant?s
activities hereunder, the Company will furnish the Consultant and its counsel
upon request with all material and information regarding the business and
financial condition of the Company and its business plans available to the
Company (all such information so furnished being the ?Information?). The
Consultant will perform due diligence based on the Information; however, the
Company recognizes and confirms that the Consultant: (a) will use and rely
primarily on the Information and on information available from generally
recognized public sources in performing the services contemplated by this
Agreement; (b) does not assume responsibility for the accuracy or
completeness of the Information and such other information as may be obtained
as part of the Consulting Services; (c) will not make an appraisal of any
securities or assets of the Company or any Company; and (d) retains the
right to continue to perform due diligence during the course of the
engagement. The Consultant agrees to keep the Information confidential, so
long as it is and remains non-public, unless disclosure is required by law or
is requested by any government or regulatory agency or body, and the
Consultant will not make use thereof, except in connection with services
provided hereunder for the Company.
5. Compensation. As compensation for the Consulting Services rendered
and to be rendered hereunder by the Consultant, the Company agrees to pay to
the Consultant the sum of $5,000 per month for a period of six (6) months,
commencing September 1, 2008, payable monthly on the 15th of each month and
to issue to Consultant or its designee 200,000 shares of the common stock of
the Company at a valuation of $0.001 per share. Any out of pocket expenses
incurred by Consultant for travel, telephone, postage, and other items shall
be reimbursed by the Company, on presentation of an expense report and
receipts for such expenses. Compensation for any period after the initial
six (6) month term of this Agreement shall be as then agreed by the parties.
It is understood and agreed that the Services provided under this Agreement
are not the exclusive services of Consultant and that Consultant, through
its agents and employees, may provide similar and other services to other
unrelated or related parties, without regard to the time allocated to the
Services and any services rendered to other parties. It is further
understood that the Compensation provided for herein is separate from and
does not include any Additional Services described in Paragraph 2 of this
Agreement.
6. Term and Termination. The initial term of this Agreement shall be
thirty-six (36) months from the date of execution; however, the term shall be
extended automatically at the end of each twelve month period for an
additional twelve month period, unless and until terminated as provided
herein. This Agreement may not be assigned by a party without the consent of
the other party. The Consultant, with thirty days prior written notice,
without cause, may terminate this engagement at any time after the end of the
first twelve months of the term of this Agreement, (except for Schedules A
and B and Sections 9, 10, and 12 of this Agreement which shall remain in full
force and effect), provided however, that the Compensation provided for
herein shall continue for a full twelve month period notwithstanding any
termination, except Compensation shall cease thirty days after notice: (a) if
such termination is for willful misfeasance, bad faith or gross negligence in
the performance of the Consultant?s duties, or by reason of the reckless
disregard of the Consultant ?s duties and obligations under this Agreement
or (b) as a result of the voluntary resignation of the Consultant?s
designated representative as the principal financial officer of the Company
unless promptly replaced by Consultant.
7. Use of Name. The Company agrees that any reference to the Consultant
in any release, communication, or material distributed to prospective
investors or lenders is subject to the Consultant?s prior written approval,
which will not be unreasonably withheld. If the Consultant resigns prior to
the dissemination of any such release, communication or material, no
reference shall be made therein to the Consultant.
8. Use of Advice. No advice rendered by the Consultant in connection with
the services performed by the Consultant pursuant to this Agreement will be
quoted by either party hereto, nor will any such advice be referred to in any
report, document, release or other communication, whether written or oral,
prepared, issued or transmitted by such party or any person or corporation
controlling, controlled by or under common control with such party or any
director, officer, employee, agent or representative of any such party,
without the prior written authorization of all parties hereto, except to the
extent required by law or compelled by judicial, administrative or regulatory
process (in which case the appropriate party shall so advise the other in
writing prior to such use and shall consult with the other with respect to
the form and timing of disclosure), provided that the foregoing shall not
prohibit appropriate internal communication or reference with respect to such
advice internally within such parties.
9. Representations and Warranties.
a. The Company represents and warrants to the Consultant
(i) that this Agreement has been duly authorized, executed and delivered by
the Company, and, assuming the due execution by the Consultant, constitutes a
legal, valid and binding Agreement of the Company enforceable against the
Company in accordance with its terms. The Company represents that, to the
best of its knowledge, the Information will not, when delivered to Consultant
specifically for inclusion in regulatory filings, contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements therein in light of the circumstances under which they
were made not misleading. The Company agrees to advise the Consultant
promptly of the occurrence of any event or any other change prior to any
filing known to it which results in the Information containing any untrue
statement of a material fact or omitting to state any material fact necessary
to make the statements contained therein, in light of the circumstances under
which they were made, not misleading.
(ii) Organization. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of Nevada.
(iii) Authorization. The Company has full power, legal capacity and
authority to enter into this Agreement, and to perform all of its obligations
hereunder. This Agreement has been effectively authorized by all necessary
action, corporate or otherwise, on the part of the Company, which
authorizations remain in full force and effect, has been duly executed and
delivered by the Company, and no other proceedings on the part of the Company
are required to authorize this Agreement. This Agreement constitutes the
legal, valid and binding obligation of the Company and is enforceable with
respect to the Company in accordance with its terms, except as enforcement
hereof may be limited by bankruptcy, insolvency, reorganization, priority or
other laws of court decisions relating to or affecting generally the
enforcements of creditors' rights or affecting generally the availability of
equitable remedies. Neither the execution and delivery of this Agreement,
nor the performance by the Company of the services contemplated hereby, or
compliance with any of the provisions hereof, will violate any judgment,
order, injunction, decree, statute, rule applicable to the Company or the
transactions or services contemplated hereby. No authorization, consent or
approval of any public body of authority or any third party is necessary for
the Company to perform the services contemplated by this Agreement.
(iv) No Pending Material Litigation or Proceedings. There are no
actions, suits or proceedings pending or, to the best of the Company?s
knowledge, threatened against or affecting the Company at law or in equity or
before or by any federal, state, municipal or other governmental department,
commission, court, board, bureau, agency or instrumentality, domestic or
foreign, or affecting any of the officers or directors or principal
stockholders of the Company in connection with the business, operations or
affairs of the Company, which might result in any adverse change in the
business of the Company, or which might prevent the Company from undertaking
the obligations contemplated by this Agreement.
(iv) Compliance with Law and Government Regulations. The Company is
in compliance, and during the term of this Agreement will be in compliance,
with all applicable statutes, regulations, decrees, orders, restrictions,
guidelines and standards, whether mandatory or voluntary, imposed by the
United States of America, any state, county, municipality or agency of any
thereof, which the Company is subject. Without limiting the generality of
the foregoing, the services contemplated by this Agreement does not and will
not: (a) involve effecting transactions in any security, or inducing,
attempting to induce the purchase or sale of any security which would require
the Company or its officers or employees to register under the Securities
Exchange Act of 1934, as amended; (b) activities which would require the
Company or its agents to register under the Investment Advisors Act of 1940,
as amended; or (c) activities which would under state regulation relating to
broker-dealers or investment advisors require registration or licensing,
unless the Company satisfies any such requirements.
b. The Consultant represents and warrants to the Company that:
(i) Organization. The Consultant is a limited liability company
duly organized, validly existing and in good standing under the laws of the
State of Colorado.
(ii) Authorization. The Consultant has full power, legal capacity and
authority to enter into this Agreement, and to perform all of its obligations
hereunder. This Agreement has been effectively authorized by all necessary
action, corporate or otherwise, on the part of the Consultant, which
authorizations remain in full force and effect, has been duly executed and
delivered by the Consultant, and no other corporate proceedings on the part
of the Consultant are required to authorize this Agreement. This Agreement
constitutes the legal, valid and binding obligation of the Consultant and is
enforceable with respect to the Consultant in accordance with its terms,
except as enforcement hereof may be limited by bankruptcy, insolvency,
reorganization, priority or other laws of court decisions relating to or
affecting generally the enforcements of creditors' rights or affecting
generally the availability of equitable remedies. Neither the execution and
delivery of this Agreement, nor the performance by the Consultant of the
services contemplated hereby, or compliance with any of the provisions
hereof, will violate any judgment, order, injunction, decree, statute, rule
applicable to the Consultant or the transactions or services contemplated
hereby. No authorization, consent or approval of any public body of
authority or any third party is necessary for the Consultant to perform the
services contemplated by this Agreement.
(iii) No Pending Material Litigation or Proceedings. There are no
actions, suits or proceedings pending or, to the best of the Consultant?s
knowledge, threatened against or affecting the Consultant at law or in equity
or before or by any federal, state, municipal or other governmental
department, commission, court, board, bureau, agency or instrumentality,
domestic or foreign, or affecting any of the officers or directors or
principal stockholders of the Consultant in connection with
the business, operations or affairs of the Consultant, which might result in
any adverse change in the business of the Consultant, or which might prevent
the Consultant from performing the services contemplated by this Agreement.
(iv) Compliance with Law and Government Regulations. The Consultant
is in compliance, and during the term of this Agreement will be in
compliance, with all applicable statutes, regulations, decrees, orders,
restrictions, guidelines and standards, whether mandatory or voluntary,
imposed by the United States of America, any state, county, municipality or
agency of any thereof, which the Consultant is subject. Without limiting the
generality of the foregoing, the services contemplated by this Agreement does
not and will not: (a) involve effecting transactions in any security, or
inducing, attempting to induce the purchase or sale of any security which
would require the Consultant or its officers or employees to register under
the Securities Exchange Act of 1934, as amended;
(b) activities which would require the Consultant or its agents to register
under the Investment Advisors Act of 1940, as amended; or (c) activities
which would under state regulation relating to broker-dealers or investment
advisors require registration or licensing.
9 Indemnity.
a. In partial consideration of the services to be rendered hereunder, the
Company agrees to indemnify the Consultant in accordance with Schedule A
attached hereto.
b. In partial consideration of the services to be rendered hereunder, the
Consultant agrees to indemnify the Company in accordance with Schedule B
attached hereto.
11. Conditions of Engagement. It is understood that the execution of
this Agreement shall not be deemed or construed as obligating the Consultant
to place or arrange any financing for the Company. It is further understood
and agreed that Consultant, and any agent or representative of Consultant
providing services under this Agreement, shall be an independent contractor,
and shall not be considered an employee or elected officer of the Company.
12. Survival of Certain Provisions. The indemnity and contribution
agreement contained in Schedules A and B to this Agreement and the
representations and warranties of the Company and Consultant contained in
Section 9 of this Agreement shall remain operative and in full force
and effect regardless of: (a) any investigation made by or on behalf of
Consultant, or any person controlling it, (b) completion of any financing,
(c) the resignation of the Consultant or any termination of the Consultant?s
services or (d) any termination of this Agreement, and shall inure to the
benefit of any successors, assigns, heirs and personal representatives of the
Company, the Consultant, and the indemnified parties .
13. Notices. Notice given pursuant to any of the provisions of this
Agreement shall be in writing and shall be mailed or delivered as follows:
if to the Company, at
TheraBiogen, Inc.
000 Xxxxxxx Xxxxxx, Xxxxx 0
Xxxxx, XX 00000
Telephone 000-000-0000
Facsimile 000-000-0000
if to Consultant, at:
The Turnaround Group, LLC.
0000 Xxxxx Xxxxx
Xxxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
or at such other address as such person may hereafter give notice to
the others.
14. Counterparts. This Agreement may be executed in two or more
counterparts and the counterparts, when executed, shall constitute a single,
enforceable document. The signature on counterparts may be transmitted by
fax, with documents so transmitted having the same force and effect as the
executed originals.
15. Third Party Beneficiaries. This Agreement has been made and is made
solely for the benefit of the Company, the Consultant and the other
Indemnified Persons referred to in Schedules A and B hereto and their
respective successors and assigns, and no other person shall acquire or have
any right under or by virtue of this Agreement.
16. Construction. This Agreement incorporates the entire understanding
of the parties and supersedes all previous agreements relating to the subject
matter hereof should they exist, and shall be governed by, and construed in
accordance with, the laws of the State of Florida, without regard to
principles of conflicts of law, and shall be enforced in any applicable court
in the State of Florida, except as otherwise provided in Section 18 below.
17. Headings. The section headings in this Agreement have been
inserted as a matter of convenience of reference and are not part of this
Agreement.
18. Amendment. This Agreement may not be modified or amended
except in writing duly executed by the parties hereto.
19. Arbitration. The Parties agree that all questions or matters in
dispute with respect to this Agreement shall be submitted to arbitration on
the following terms:
a. It shall be a condition precedent to the right of any party to submit
any matter to arbitration pursuant to the provisions hereof, that any party
intending to refer any matter to arbitration shall have given not less than
five business days? prior written notice of its intention to do so to the
other party together with particulars of the matter in dispute. On the
expiration of such five business days the party who gave such notice may
proceed to refer the dispute to arbitration as provided for below.
b. The party desiring arbitration shall appoint one arbitrator, and shall
notify the other party of such appointment, and the other party shall, within
five business days after receiving such notice, appoint an arbitrator, and
the two arbitrators so named, before proceeding to act, shall, within five
business days of the appointment of the last appointed arbitrator,
unanimously agree on the appointment of a third arbitrator, to act with them
and be chairman of the arbitration herein provided for. If the other party
shall fail to appoint an arbitrator within five business days after receiving
notice of the appointment of the first arbitrator, and if the two arbitrators
appointed by the parties shall be unable to agree on the appointment of the
chairman, the chairman shall be appointed in accordance with the rules for
commercial arbitration of the American Arbitration Association. Except as
specifically otherwise provided in this section, the arbitration herein
provided for shall be conducted in accordance with the rules for commercial
arbitration of the American Arbitration Association and shall be conducted in
the State of Florida. The chairman, or in the case where only one arbitrator
is appointed, the single arbitrator, shall fix a time and place for the
purpose of hearing the evidence and representations of the parties, and he
shall preside over the arbitration and determine all questions of procedure
not provided for by the rules for commercial arbitration of the American
Arbitration Association, or this section. After hearing any evidence and
representations that the parties may submit, the single arbitrator, or the
arbitrators, as the case may be, shall make an award and reduce the same to
writing, and deliver one copy thereof to each of the parties.
c. The Parties agree that the award of a majority of the arbitrators, or
in the case of a single arbitrator, of such arbitrator, shall be final and
binding upon each of them, and there shall be no appeal from such award.
d. Any award in the arbitration shall be limited to actual contractual
damages, and there shall be no award of consequential or punitive damages,
attorneys? fees or other expenses. Each party expressly waives and disclaims
the right to a jury trial relating to or arising out of this Agreement and
expressly accepts the arbitration procedure set forth herein as the sole
means of resolving any disputes or disagreements.
20. Legal Services. The Consultant when retained may be
recommending and referring legal counsel to assist with the services to be
performed under this Agreement and the Company understands and agrees that
the Consultant and its agents and employees are not performing independent
legal services for the Company.
Executed and delivered by the undersigned, intending to be bound
thereby, as of and effective on the date above.
Consultant:
THE TURNAROUND GROUP, LLC
d/b/a FSR, Inc.
By /s/ Date: September 21, 2008
Managing Director
Company:
THERABIOGEN, INC.
By /s/ Date: September 21, 2008
Title: _______________________
