EXHIBIT 10.9
WIEN GROUP LETTERHEAD
CONSULTING AGREEMENT
CONSULTING AGREEMENT (the "Agreement") dated as of June 20, 2002 between Health
XXXX, INC. c/o Xxxxxxx Good, located at 000 Xxxxxx Xxxxxxx Xxxx, Xxxxxxxxxxxx,
XX 00000 ("Client," "Company") and WIEN GROUP, INC. ("Consultant") located at
000 Xxxxxxxxxx Xxxx., Xxxxx 0000, Xxxxxx Xxxx, XX, 00000, a New York
Corporation.
WITNESSETH
WHEREAS, Client desires to receive services from the Consultant in connection
with the following collective services (the "Program"):
o Assist the Company with on-going strategy planning, investment policies,
and financial packaging.
o Arrange market support.
o Arrange for the production of an equity research report for the Company.
o Assist the Company with its public relations strategy.
o Arrange the dissemination of Company information via targeted mailings and
other media.
o Provide representation of Client, and introduction to various financial
institutions, strategic partners, and potential clients.
o Assisting in the negotiation of contracts with lenders, suppliers, clients,
and/or strategic partners.
WHEREAS, the Consultant has established their expertise in, among other things,
corporate. finance, mergers & acquisitions, assisting in the planning of
corporate expansion, arranging private financing, and financial consulting
services in general.
NOW, THEREFORE, in consideration of the mutual covenants and agreements, and
upon the term and agreements, and upon the terms and subject to the conditions
hereinafter set forth, the parties do hereby covenant and agree as follows:
SECTION 1. RETENTION OF CONSULTANT. Client engages the Consultant, and the
Consultant accepts such engagement, subject to the terms and conditions of this
Agreement.
SECTION 2. SERVICES. At such times as are mutually convenient to the Consultant
and Client during the Term (as defined below), the Consultant shall provide
consulting services to Client in connection with each of the Objectives.
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EXHIBIT 10.9
SECTION 3. COMPENSATION. For services rendered by the Consultant pursuant to
this Agreement, Client shall pay Consultant the following:
(a) Upon execution of this Agreement, Client shall pay the Consultant a
retainer of $2,000 allocated to cover initial expenses, 25,000 shares of
Health Xxxx Inc. plus, if Health Xxxx, Inc. is acquired by Biofarm, Inc. as
intended and expected, 100,000 restricted shares of Biofarm, Inc.
(OTCBB:BIOF) with Registration Rights as defined below:
Registration Rights: At any time Wien shall have two demand
registration rights, on customary terms, covering shares of Common
Stock, registered and tradable, purchasable on exercise of the
Warrants. In addition, Wien may choose to participate, on a pro rata
basis and on customary terms, in any and all primary or secondary
public offerings of Common Stock. All expenses and fees relating to
the registered sale of Consultant's Common Stock (including the fees
and expenses of Consultants counsel in all demand and piggyback
Registrations) shall be paid by the Company, except for underwriting
and selling discounts and commissions.
(b) For any direct business joint Ventures between Company and Consultant,
these shall be divided equally and for any services rendered for M & A work
these shall be assessed and agreed to on a case-by-case basis.
SECTION 4. EXPENSES. Client shall pay the Consultant, on a monthly basis, all
costs and out- of-pocket expenses incurred by the Consultant in connection with
its obligations and duties under this Agreement; provided, however, that the.
Consultant shall obtain the prior written consent of Client for any single item
of expense in excess of $100. Client's consent hereunder shall not be
unreasonably withheld or delayed.
SECTION 5. NON-EXCLUSIVITY. The parties hereto acknowledge that Consultant has
been retained by Client on a non-exclusive basis.
SECTION 6. FULL COOPERATION. In connection with the activities of the Consultant
on behalf of Client, Client will cooperate with the Consultant and will furnish
the Consultant and the Consultant's representatives with all information and
data concerning Client as may be required in connection with the Consultant's
services hereunder. Client will also provide Consultant and the Consultant's
representatives with access to Client's officers, directors, employees, agents,
representatives, independent accountants and legal counsel.
SECTION 7. REPRESENTATIONS. Client warrants and represents to the Consultant
that this Agreement does not conflict with any other agreement binding Client.
Client warrants and represents to the Consultant, that Client is fully
authorized to offer and pay the Consultant's compensation referred to in Section
3 above. Client warrants and represents to the Consultant that to the. best of
Client's knowledge all information provided, or made available
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EXHIBIT 10.9
to the Consultant (including but not limited to, all information contained in
our Business Plan) will, at all times during the period of this engagement, be
complete and correct, will contain all material facts, and will not omit to
state a material fact necessary in order to make the statements therein not
misleading in the light of the circumstances under which such statements are
made. Client further warrants and represents to the Consultant that any
projection provided by Client to the Consultant (whether before, on or after the
date hereto) have been prepared in good faith and are based upon reasonable
assumptions. Client acknowledges and agrees that in rendering the Consultant's
services hereunder, the Consultant will be using and relying upon the
information (and information available from public sources and other sources
deemed reliable by the Consultant) without Independent verification thereof or
independent appraisal of any of Client's assets by the Consultant and that the
Consultant assumes no responsibility for the accuracy of the information or any
other information regarding Client or any financing. Any advice rendered by the
Consultant pursuant hereto may not be publicly disclosed or otherwise utilized
without the Consultant's prior written consent.
SECTION 8. NOT A BROKER-DEALER. Client understands that the Consultant is not a
registered broker/dealer, that the Consultant's activities on Client's behalf in
connection with any financing will be limited to the identification of
prospective broker-dealers, and that the Consultant has not been engaged to
effect any transaction with respect to Client's securities for Client or others.
SECTION 9. INDEMNIFICATION. Client agrees to indemnify and hold harmless the
Consultant, and any company controlling the Consultant or controlled by the
Consultant, and their respective officers, agents and employees to the full
extent lawful, from and against any losses, claim, damages or liabilities
(including reasonable counsel fees) related to or arising out of this agreement
or in connection with a financing and to reimburse the party entitled to be
indemnified hereunder for all reasonable expenses (including reasonable counsel
fees) as may be incurred by such party in connection with investigating,
preparing or defending any such action or claim; provided, however, that Client
shall not indemnify and hold harmless the Consultant or any such other person
for any liability attributable to the Consultant's or such other party's gross
negligence or willful misconduct or to the Consultant's breach of the
Consultant's obligations hereunder.
The Consultant agrees to indemnify and hold harmless Client and its officers,
agents and employees to the full extent lawful, from and against any losses,
claims, damages, or liabilities (including full extent lawful, from and against
any losses, claims, damages, or liabilities (including reasonable counsel fees)
relating to the Consultant's gross negligence, willful misconduct or breach of
its obligations hereunder and to reimburse the party entitled to be indemnified
hereunder for all reasonable expenses (including reasonable counsel fees) as may
be incurred by such party in connection with investigating, preparing or
defending any such action or claim, provided, however, that the Consultant shall
not indemnify and hold harmless Client or any such other person for any
liability attributable to Client's or such other person's gross negligence or
willful misconduct or to Client's breach of its obligations hereunder; and
provide, further, that the Consultant's maximum liability hereunder shall not
exceed the
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EXHIBIT 10.9
amount or monetary value (determined on a liquidity basis) of any compensation
received by the Consultant pursuant to Section 3 hereof.
SECTION 10. WAIVER OF BREACH. The failure by Client to exercise any rights or
powers hereunder shall not be construed as a waiver thereof. The waiver by
Client of a breach of any provision of this Agreement by the Consultant shall
not operate nor be construed as a waiver of any subsequent breach by the
Consultant.
SECTION 11. NOTICES. All notices, requests, demands and other communications
which are required or permitted under this Agreement shall be in writing and
shall be deemed sufficiently given upon receipt if personally delivered, faxed,
sent by recognized national overnight courier or mailed by certified mail,
return receipt requested, to the address of the parties set forth above. Such
notices shall be deemed to be given (i) when delivered personally, (ii) one day
after being sent by overnight courier carrier or (iii) three days after being
mailed, respectively.
SECTION 12. TERM. This Agreement shall be for a term commencing on the date
hereof and ending in one (1) year with an automatic extension for an additional
one (l) year in the event that the Consultant is successful in arranging any
subordinate, mezzanine and/or equity financing.
SECTION 13. GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the internal laws of the State of New Jersey.
SECTION 14. ENTIRE AGREEMENT, AMENDMENTS. This Agreement contains the entire
agreement and understanding between the parties and supercedes and preempts any
prior understandings or agreements, whether written or oral. The provisions of
this Agreement may be amended or waived only with the prior written consent of
Client and the Consultant.
SECTION 15. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon, inure
to the benefit of, and shall be enforceable by the Consultant and Client and
their respective successors and assigns, provided, however, that the rights and
obligations of the Consultant under this Agreement (with the exception of those
rights in Section 3 hereof) shall not be assignable.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement:
WIEN GROUP, INC. HEALTH XXXX, INC.
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxxxxx Good
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Name: Xxxx X. Xxxxxx Name: Xxxxxxx Good
Title: Executive Vice President Title: CEO & President
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