Exhibit 10.5
CF Columbia
Financial
Group ___________________________________________________________________
0000 Xxxx Xxxx * Suite 400 * Xxxxxxxxxxx XX 00000
Tel: (000)000- 0000 * Fax (000) 000-0000
CONSULTANT AGREEMENT
Columbia Financial Group is an investor relations, direct marketing,
publishing, public relations and advertising firm with expertise in the
dissemination of information about publicly traded companies. Also in the
business of providing investor relations services, public relations services,
publishing, advertising services, fulfillment services, as well as Internet
related services.
Agreement made this 13th day of September, 2000, between Whole Living,
Inc. (hereinafter referred to as "Corporation"), and Columbia Financial Group,
Inc. (hereinafter referred to as "Consultant"), (collectively referred to as
the "Parties"):
Recitals:
The Corporation desires to engage the services of the Consultant to
perform for the Corporation consulting services regarding all phases of the
Corporation's "Investor Relations" to include direct investor relations and
broker/dealer relations as such may pertain to the operation of the
Corporation's business.
The Consultant desires to consult with the Board of Directors, the
Officers of the Corporation, and certain administrative staff members of the
Corporation, and to undertake for the Corporation consultation as to the
company's investor relations activities involving corporate relations and
relationships with various broker/dealers involved in the regulated securities
industry.
AGREEMENT
1. The respective duties and obligations of the contracting Parties
shall be for a period of twelve (12) months commencing on the date first
appearing above. This Agreement may be terminated by either parties only in
accordance with the terms and conditions set forth in Paragraph 8.
Services Provided by Consultant
2. Consultant will provide consulting services in connection with the
Corporation's "investor relations" dealings with NASD broker/dealers and the
investing public. (At no time shall the Consultant provide services which
would require Consultant to be registered and licensed with any federal or
state regulatory body or self-regulating agency.) During the term of this
Agreement, Consultant will provide those services customarily provided by an
investor relations firm to a Corporation, including but not limited to the
following:
-1-
Columbia Financial Group
(a) Aiding the Corporation in developing a marketing plan
directed at informing the investing public as to the business of the
Corporation; and
(b) Providing assistance and expertise in devising an
advertising campaign in conjunction with the marketing campaign as set forth
in (1) above; and
(c) Advise the Corporation and provide assistance in dealing
with institutional investors as it pertains to the Corporation's offerings of
its securities; and
(d) Aid and assist the Corporation in the Corporation's efforts
to secure "market makers" which will trade the Corporation's stock to the
public by providing such information as may be required; and
(e) Aid and advise the Corporation in establishing a means of
securing nationwide interest in the Corporation's securities; and
(f) Aid and assist the Corporation in creating an "institutional
site program" to provide ongoing and continuous information to fund managers;
and
(g) Aid and consult with the Corporation in the preparation and
dissemination of press releases and news announcements; and
(h) Aid and consult with the Corporation in the preparation and
dissemination of all "due diligence" packages requested by and furnished to
NASD registered broker/dealers, the investing public, and/or other
institutional and/or fund mangers requesting such information from the
Corporation.
Compensation
3. In consideration for the services provided by Consultant to the
Corporation, the Corporation shall on behalf of the Consultant caused to be
vested immediately upon the signing of this agreement:
800,000 five year warrants at $2.00 per share.
-2-
Columbia Financial Group
Compliance
4. At the time consultants give notice to the Company or execution of
the Warrants referred to in #3, Compensation above, common shares underlying
the warrants, delivered by Corporation to Consultant will, at that particular
time be free trading, or if not, the shares shall be incorporated in the next
registration statement filed by the Corporation. The warrants shall have
"piggy back" registration rights and will, at the expense of the Corporation,
be included in said registration statement in a timely manner.
Representation of Corporation
5 (a). The Corporation, upon entering this Agreement, hereby warrants
and guarantees to the Consultant that to the best knowledge of the Officers
and Directors of the Corporation, all statements, either written or oral, made
by the Corporation to the Consultant are true and accurate, and contain no
misstatements of a material fact. Consultant acknowledges that estimates of
performance made by Corporation are based upon the best information available
to Corporation officers at the time of said estimates of performance. The
Corporation acknowledges that the information it delivers to the Consultant
will be used by the Consultant in preparing materials regarding the Company's
business, including but not necessarily limited to, its financial condition,
for dissemination to the public. Therefore, in accordance with Paragraph 6,
below, the Corporation shall hold harmless the Consultant from any and all
errors, omissions, misstatements, except those made in a negligent or
intentionally misleading manner in connection with all information furnished
by Corporation to Consultant.
(b). Consultant shall agree to release information only with written
or verbal approval of the company.
6.
Corpas Investments, Inc.
1. Authorized: ________ shares
2. Issued: ________ shares
3. Outstanding: _________ shares
4. Free trading (float): ________ shares
5. Shares subject to Rule 144 restrictions: ________ shares
(approx.)
-3-
Columbia Financial Group
Limited Liability
7. With regard to the services to be performed by the Consultant
pursuant to the terms of this Agreement, the Consultant shall not be liable to
the Corporation, or to anyone who may claim any right due to any relationship
with the Corporation, for any acts or omissions in the performance of services
on the part of the Consultant, except when said acts or omissions of the
Consultant are due to its willful misconduct or culpable negligence.
Termination
8. This Agreement may be terminated by either party upon the giving
of not less than thirty (30) days written notice, delivered to the parties at
such address or addresses as set forth in Paragraph 9, below. In the event
this Agreement is terminated by the Corporation, compensation paid by
Corporation pursuant to paragraph 3 above, to the Consultant to the date of
termination (or through the end of the month during which notice of
termination is delivered). In the event this Agreement is terminated by
consultant, compensation shall be reimbursed to Corporation as follows:
The Agreement will be divided into four equal quarters. If termination
occurs within the first quarter or initial ninety (90) days of the Agreement
the Consultants will have no obligation to return any of the initial
compensation of the contract pursuant to paragraph 3 above. Each and every
subsequent quarter of the Agreement will have an equal amount of compensation.
If termination occurs within any quarter of the Agreement the Consultants will
return a pro rata amount based on a 90 day quarter.
The valuation of said shares for purposes of repayment of shares, shall
be the bid price of said shares as of the date shares are tendered back to the
Corporation. If there is no bid price, then the price shall be agreed to, by
separate writing to be determined by the parties upon the execution of this
agreement.
Notices
9. Notices to be sent pursuant to the terms and conditions of this
Agreement, shall be sent as follows:
Xxxxxxx X. Rieu Xxxx Xxxxxxxx
Columbia Financial Group, Inc. Whole Living, Inc.
0000 Xxxx Xxxx, Xxx. 000 629 East 000 Xxxxx, Xxx. 000
Xxxxxxxxxxx, Xxxxxxxx 00000 Xxxxxxxx Xxxx, XX 00000
-4-
Columbia Financial Group
Attorney's Fees
In the event any litigation or controversy, including arbitration, arises
out of or in connection with this Agreement between the Parties hereto, the
prevailing party in such litigation, arbitration or controversy, shall be
entitled to recover from the other party or parties, all reasonable attorney's
fees expenses and suit costs, including those associated within the appellate
or post judgement collections proceedings.
Arbitration
10. In connection with any controversy or claim arising out of or
relating to this Agreement, the Parties hereto agree that such controversy
shall be submitted to arbitration, in conformity with the Federal Arbitration
Act (Section 9 U.S. Code Section 901 et seq), and shall be conducted in
accordance with the Rules of the American Arbitration Association. Any
judgment rendered as a result of the arbitration of any dispute herein, shall
upon being rendered by the arbitrators be submitted to a Court of competent
jurisdiction with the state of Maryland, if initiated by Consultant, or in the
state of Utah if initiated by the Corporation.
Governing Law
11. This Agreement shall be construed under and in accordance with
the laws of the State of Utah, and all parties hereby consent to Utah as the
proper jurisdiction for said proceeding provided herein.
Parties Bound
12. This Agreement shall be binding on and inure to the benefit of
the contracting parties and their respective heirs, executors, administrators,
legal representatives, successors, and assigns when permitted by this
Agreement.
Legal Construction
13. In case any one or more of the provisions contained in this
Agreement shall for any reason be held to be invalid, illegal, or
unenforceable in any respect, the invalidity, illegality, or unenforceability
shall not affect any other provision, and this Agreement shall be construed as
if the invalid, illegal, or unenforceable provision had never been contained
in it.
Prior Agreements Superseded
14. This Agreement constitutes the sole and only Agreement of the
contracting parties and supersedes any prior understandings or written or oral
agreements between the respective parties. Further, this Agreement may only be
modified or changed by written agreement signed by all the parties hereto.
-5-
Columbia Financial Group
Multiple Copies or Counterparts of Agreement
15. The original and one or more copies of this Agreement may be
executed by one or more of the parties hereto. In such event, all of such
executed copies shall have the same force and effect as the executed original,
and all of such counterparts taken together shall have the effect of a fully
executed original. Further, this Agreement may be signed by the parties and
copies hereof delivered to each party by way of facsimile transmission, and
such facsimile copies shall be deemed original copies for all purposes if
original copies of the parties' signatures are not delivered.
Liability of Miscellaneous Expenses
16. The Corporation shall be responsible to any miscellaneous fees
and costs approved in writing prior by the Corporation or its agents to
commitment that are unrelated to the agreement made between the Parties.
Headings
17. Headings used throughout this Agreement are for reference and
convenience, and in no way define, limit or describe the scope or intent of
this Agreement or effect its provisions.
IN WITNESS WHEREOF, the Parties have set their hands and seal as of the
date written above.
/s/ Xxxxxxx X. Rieu
BY: _______________________
Xxxxxxx X. Rieu, President
Columbia Financial Group, Inc.
/s/ Xxxxxxx Xxxxxxxx
BY: _______________________
Xxxxxxx Xxxxxxxx
Whole Living, Inc.
-6-
Confidentiality and Non-Disclosure Agreement
Confidentiality and Non-Disclosure Agreement made and entered into effective
December 5, 2000 by and between Whole Living, Inc. (Whole Living) and Columbia
Financial Group (CFG).
"Confidential Information" as used herein shall mean the "distributor mailing
lists" that CFG, and certain associated companies and individuals, will use in
the mailing of information postcards to Whole Living distributors.
CFG acknowledges and agrees that Confidential Information is proprietary to
and a valuable trade asset of Whole Living, and that any disclosure on
unauthorized use thereof will cause irreparable harm and loss to Whole Living.
In consideration of the proprietary nature of the Confidential Information
disclosed or to be disclosed to CFG and its associated companies or
individuals, and as an inducement for such disclosure, CFG agrees to maintain
confidential all such information from the date hereof.
CFG further specifically agrees (1) not to disclose or cause to be disclosed
any Confidential Information provided by Whole Living during the relationship
of the parties hereto, (2) to assure, by written agreement where appropriate,
that the Confidential Information is used by any associated company or
individual, such as printers, shippers, etc., including the undersigned, only
for the express purposes for which you retained their services, and not for
any purpose other than the printing and mailing of the information postcards,
and (3) to return, or cause to be returned by associated parties, immediately
after the completion of each mailing, all confidential information, including
all copies and records thereof, to Whole Living.
In witness whereof the parties hereto have caused this Agreement to be
executed by their duly authorized representatives.
WHOLE LIVING, INC. COLUMBIA FINANCIAL GROUP
/s/ Xxxxxxx X. Rieu
By_____________________________ By___________________________
Its_____________________________ Its___________________________
12/7/00
Date___________________________ Date__________________________
______________________________
Company Name
By___________________________
Its___________________________
Date__________________________
ADDENDUM TO CONSULTING AGREEMENT
BETWEEN COLUMBIA FINANCIAL GROUP AND WHOLE LIVING, INC.
DATED SEPTEMBER 13, 2000 AND AMENDMENT TO CONSULTING AGREEMENT
This is an Addendum to that Consulting Agreement dated September 13, 2000
as amended as of that same date between Columbia Financial Group
("Consultant") and Whole Living, Inc. ("Corporation") (the "Consulting
Agreement as Amended").
The following terms are hereby incorporated as part of the Consulting
Agreement as Amended, and to the extent these terms modify or conflict with
any provisions of the Consulting Agreement as Amended, these terms shall
control. All other terms of the Consulting Agreement as Amended not modified
shall remain the same.
1. Corporation and Consultant agree and hereby amend paragraph 3 by
reducing the exercise price for the 800,000 warrants with a term of five years
from $2.00 per share to $.50 per share.
DATED this 12th day of April, 2001.
COLUMBIA FINANCIAL GROUP, INC.
/s/ Xxxxxxx X. Rieu
By: _______________________________
Xxxxxxx X. Rieu, President
WHOLE LIVING, INC.
/s/ Xxx Xxxxxxxx
By: ________________________________
Xxx Xxxxxxxx
