CONSULTING SERVICES AGREEMENT
Exhibit
10.2
THIS
CONSULTING SERVICES AGREEMENT (the "Agreement") is effective as of the 27th
day
of December, 2005, by and between Health Rush, Inc., a Delaware corporation
with
principal offices at 000 Xxxxxxx Xxxxxx, Xxxxxxxxx Xxxxxxx, Xxx Xxxxxx 00000
(the "Company") and EMH Advisory Services, Inc., a Delaware corporation (the
“Consultant”).
WHEREAS:
| A. |
The
Company is seeking certain consulting and management advisory services
such as that to be provided by the Consultant;
and
|
| B. |
The
Company has had an opportunity to evaluate the consulting
and management advisory services offered by Consultant;
and
|
| C. |
Subject
to the terms and conditions of this Agreement, Consultant is willing
to
provide certain consulting and management advisory services to
the Company
in exchange for the Company’s payment of the Fee (as described herein).
|
NOW
THEREFORE, in consideration of the foregoing recitals and of the mutual
covenants, agreements, representations and warranties set forth in this
Agreement, THE PARTIES AGREE AS FOLLOWS:
1.0
Description
of Consulting Services.
Consultant agrees to provide, during the term of this Agreement, the following
consulting services:
|
1.1
|
Perform
investor relations services for the Company including, without
limitation,
responding to inquiries by the public regarding the Company and
enhancing
the visibility of the Company’s business strategy, subject in all cases to
compliance in all respects with applicable federal and state securities
laws and regulations.
|
|
1.2
|
Provide
management advisory services, as determined from time to time,
in
connection with developing and implementing the Company’s plans to
identify suitable locations for the Company’s “fast service” restaurants.
|
|
1.3
|
Assist
the Company in identifying potential candidates for managerial
positions
at the Company’s planned
restaurants.
|
|
1.4
|
Assist
the Company, if needed, in obtaining real estate financing and
in
structuring the acquisition (via purchase and/or lease) of suitable
real
estate for the location of one or more of the Company’s planned
restaurants.
|
1
|
1.5
|
Provide
the Company, if requested, with assistance in evaluating demographics
for
the location of one or more planned
restaurants.
|
2.0 Reports
to the Company.
Consultant may, from time to time, deliver a report to the Company in connection
with the services being provided by Consultant..Consultant hereby agrees
that
prior to the public dissemination of any materials describing or relating
to the
Company is shall first provide a complete proof or draft thereof to the
President and Chief Financial Officer for their review and
approval.
3.0
Fee
to
be Paid to Consultant.
In
consideration for the services rendered and to be rendered by Consultant
as
described in Section 1.0 of this Agreement, the Company shall pay to Consultant
a Fee which shall be comprised solely of not more than one million five hundred
thousand (1,500,000) restricted shares of the Company’s common stock (par value
$0.001) (the “Shares”) which shall be issued and delivered in the form of a
stock certificate to Consultant as soon as is reasonably practicable, via
overnight express mail, postage prepaid, or via similar overnight express
delivery, at no cost to Consultant. The parties to this Agreement agree that
the
Shares are and shall be fairly valued at their par value per Share. If
requested, Consultant agrees to: (A) execute an investment questionnaire
and/or
an investment agreement as is customary for the issuance of the Shares and
the
same agreement shall not be held or interpreted so as to contradict or
contravene this Agreement in any way; and (B) cooperate with the Company
in
connection with any reasonable requests to ensure compliance with state and
federal securities laws in connection with the issuance of the Company’s Shares
to Consultant in payment of the Fee hereunder.
4.0 Restricted
Shares.
Consultant acknowledges and agrees that the Shares are to be issued to
Consultant pursuant to the private offering exemption of Section 4(2) of
the
Securities Act of 1933 (the “Securities Act”) and the certificates representing
the Shares shall bear a restricted securities legend as customarily used
in
transactions involving the issuance of restricted stock in non-public offerings
where there has been an absence of any general solicitation and the purchaser
of
the restricted stock is sophisticated and experienced in purchasing securities
that are to be issued to Consultant under this Agreement.
5.0 Registration
Rights.
5.1 Participation.
Subject
to the limitations and restrictions of Section 5.2 below, if at any time
from
and after the date hereof and for a period of two years thereafter, the Company
proposes to file or files a Registration Statement (as defined below) with
the
Securities and Exchange Commission (“SEC”) under the Securities Act with respect
to any offering by the Company of securities of the same type as the Shares,
for
the account of the Company (other than a Registration Statement on Form S-8
or
S-4 or any successor form thereto), then as promptly as practicable the Company
shall, subject to the provisions of Section 5.2 below, give Consultant the
opportunity to include in such Registration Statement up to, but not in excess
of, 500,000 of the Shares (the “Registrable Shares”) received by the Consultant
pursuant to this Agreement. Pursuant to timely notice by the Company off
its
intent to file a Registration Statement, the Consultant shall notify the
Company
in writing of its request to have all or a portion of its Registrable Shares
included in such Registration Statement (a “Piggyback Registration”). The
Consultant electing to participate via such Piggyback Registration shall
do so
pursuant to the terms of such proposed Registration Statement and shall execute
such usual and customary custody agreements, powers of attorney, underwriting
agreements or other documents as are reasonably requested or required by
the
Company and any Underwriter (defined below) of such offering. The costs of
including the Registrable Shares in such Piggyback Registration shall be
borne
by the Company. The Consultant shall be entitled to withdraw any or all of
such
Registrable Shares from the Piggyback Registration at any time prior to the
effective date of thereof.
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5.2 Limitations
and Restrictions. The
foregoing notwithstanding, (a) in the event that any underwriter, selling
agent
or affiliate thereof (collectively referred to as the “Underwriter”) engaged by
the Company in the offer and sale of the securities being registered in the
Registration Statement in which the Consultant has sought Piggyback Registration
for its Registrable Shares, advises the Company that the total amount of
securities requested to be included by persons other than the Company in
such
Piggyback Registration exceeds the amounts which can be sold in (or during
the
time of) such offering without delaying or jeopardizing the success of the
offering by the Company of its securities, then after taking into effect
all
securities proposed to be included in the Registration Statement, the amount
of
securities to be offered and sold on behalf of holders of registration rights,
including the Registrable Shares, shall be reduced pro rata; and furthermore,
if
deemed advisable by the Underwriter or Underwriters on the basis of the matters
set forth herein, such Registrable Shares may be removed altogether from
such
Registration Statement.
(b) In
the
event that the SEC, the National Association of Securities Dealers, Inc.,
any
state Blue Sky or securities commission or regulatory agency, the OTC Bulletin
Board, any national or regional securities exchange or national automated
quotation system, in the course of its respective review of the Company’s
Registration Statement in which Piggyback Registration has been sought by
the
Consultant, requests, directs declares or otherwise orders that the Registrable
Securities proposed to be included in such Registration Statement be removed
in
whole or in part from such Registration Statement or that the Company will
be
unable to achieve effectiveness of its Registration Statement so long as
all or
a portion of such Registrable Securities are included for registration therein,
then in any such case and without any further response or appeal process
by the
Consultant or the Company, the Company shall remove such Registrable Securities
from the Registration Statement.
(c) In
the
event that the Consultant fails to include (other than as a direct result
of
restrictions or limitations imposed by regulatory authorities or securities
exchanges or associations as set forth above) or otherwise determines not
to
include any or all of the Registrable Shares in a Registration Statement
which
is filed by the Company with and which is declared effective by the SEC (the
“Effective Registration Statement”) during the time period set forth in Section
5.1 above, then in such case the Piggyback Registration Rights provided hereby
shall thereafter cease and be of no further force or effect with respect
to the
balance of Registrable Shares (“Registrable Share Balance”) not included in such
Effective Registration Statement. In such case the Consultant shall be barred
from asserting any Piggyback Registration Rights with respect to the Registrable
Share Balance in connection with any subsequent Registration Statement of
the
Company filed after the Effective Registration Statement, even if such
subsequent Registration Statement is filed by the Company within the time
period
set forth in Section 5.1.
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5.3 Definition.
For
purposes hereof the term Registration Statement shall mean any registration
statement of the Company filed with the SEC for the purpose of facilitating
the
public offering and sale of equity securities of the Company, including the
prospectus included therein and as further modified pursuant to the provisions
of Regulation 430A promulgated under the Securities Act, amendment and
supplements to such Registration Statement (including post-effective
amendments), all exhibits and all material incorporated by reference in such
registration statement.
6.0
Responsibility
for Expenses.
Consultant agrees that all costs and expenses incurred by Consultant under
this
Agreement shall be and remain the sole responsibility of
Consultant.
7.0
Status
of Consultant.
Consultant shall render all consulting services to the Company solely as
an
independent contractor and not as an employee of the Company. Consultant
agrees
to be responsible for all state and federal income and capital gains taxes
that
may be incurred in connection with the Fee paid by the Company
hereunder.
8.0
Obligations
of the Company.
The
Company shall cooperate with Consultant and provide Consultant with complete
and
accurate copies of all necessary documents and information reasonably needed
by
Consultant and as reasonably requested by Consultant in a timely manner.
9.0
Miscellaneous.
9.1 Successors.
The
provisions of this Agreement shall be deemed to obligate, extend to,
and inure
to the benefit of the successors of each of the parties to this Agreement,
including, but not limited to, any that arise out of a Merger Transaction.
All
of the parties to this Agreement agree to adhere to all applicable
state and
federal securities laws.
9.2 Integration.
This
Agreement, after full execution, acknowledgment and delivery, memorializes
and
constitutes the entire agreement and understanding between the parties
and
supersedes and replaces all prior negotiations and agreements of the
parties,
whether written or unwritten, or related thereto regarding the consulting
services to be rendered by Consultant to the Company.
9.3 Amendments.
No
amendment to this Agreement shall be effective unless the same shall
be in
writing executed by the party against whom enforcement is sought.
9.4 Counterparts.
This
Agreement may be executed in any number of counterparts.
9.5 Non-Assignability. This
Agreement and the rights and obligations set forth herein may not be
assigned or
otherwise transferred by the Consultant without the prior written consent
of the
Company.
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IN
WITNESS WHEREOF,
the
parties have executed this Agreement as of the date set forth above.
THE
COMPANY:
By:
/s/
Xxxxxxxxxxx X. Xxxxxxxx
Name:
Xxxxxxxxxxx
X. Xxxxxxxx
Title:
President
and CEO
THE
CONSULTANT:
EMH
ADVISORY SERVICES, INC.
By:
/s/
Xxxxxxxxx Xxxxxxxx
Name:Xxxxxxxxx
Xxxxxxxx
Title:
Managing
Director
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