As filed with the Securities and Exchange Commission on
May 25, 2000
Registration No. 333-
----------------------------
<P>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
<P>
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
<P>
THE AUXER GROUP, INC.
(Exact name of issuer as specified in its charter)
<P>
Delaware 22-3537927
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization Identification No.)
<P>
12 Andrews Drive, West Patterson, New Jersey 07424
(Address of Principal Executive Offices) (Zip Code)
<P>
Consulting
Shares Issued For Services
(Full title of the Plan)
<P>
Eugene Chiaramonte, Jr., President and CEO
The Auxer Group, Inc.
12 Andrews Drive
West Patterson, New Jersey 07424
(Name and address of agent for service)
<P>
(973) 890-4925
<P>
copies to:
<P>
Richard I. Anslow & Associates
4400 Route 9, 2nd Floor
Freehold, NJ 07728
(732) 409-1212
<P>
Approximate date of commencement of proposed sale to the
public: Upon the effective date of this Registration
Statement.
<P>
If any of the securities being registered on this Form
are to be offered on a delayed or continuous basis
pursuant to Rule 415 under the Securities Act of 1933,
other than securities offered only in connection with
dividend or interest reinvestment plans, check the
following line: [ ]
<P>
If this Form is filed to register additional securities
for an offering pursuant to Rule 462(b) under the
Securities Act, please check the following box and list
the Securities Act registration statement number of the
earlier effective registration statement for the same
offering. [ ]
<P>
If this Form is a post-effective amendment filed pursuant
to Rule 462(c) under the Securities Act, please check the
following box and list the Securities Act registration
statement number of the earlier effective registration
statement for the same offering. [ ]
<P>
If delivery of the prospectus is expected to be made
pursuant to Rule 434, please check the following box. [ ]
<P>
<TABLE>
<S> <C> <C> <C> <C>
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of maximum maximum
securities Amount Offering aggregate Amount of
to be to be price per offering registration
registered registered share(1)(2) price fee (1)
<P>
Common Stock, 11,765,385 (3) $0.07625 $897,111 $236.84
$.001 par value
</TABLE>
<P>
(1) The fee with respect to these shares has been
calculated pursuant to Rules 457(h) and 457(c) under the
Securities Act of 1933 and based upon the average of the
last price per share of the Registrant's Common Stock on
May 23, 2000, a date within five (5) days prior to the
date of filing of this Registration Statement, as
reported by the NQB Pink Sheets.
<P>
(2) Estimated solely for the purpose of calculating
the registration fee.
<P>
(3) This Registration Statement also covers 200,000
shares of Common Stock for the Company's President,
Eugene Chiaramonte, Jr. which became issuable under the
Registrant's Non-Statutory Stock Option Plan filed on
Form S-8 with the SEC on May 23, 2000. The registration
fee on such shares was already paid when such S-8 was
filed.
<P>
Documents Incorporated by Reference X Yes No
<P>
PART I
<P>
INFORMATION REQUIRED IN THE SECTION 10(A)PROSPECTUS
<P>
The Auxer Group, Inc. (the "Company" or "Auxer") will
send or give the documents containing the information
specified in Part 1 of Form S-8 to employees or
consultants as specified by Securities and Exchange
Commission Rule 428 (b) (1) under the Securities
Act of 1933, as amended (the "1933 Act"). Auxer is not
required to file these documents with the Commission
either as part of this Registration Statement or as
prospectuses or prospectus supplements under Rule 424
of the 1933 Act.
<P>
REOFFER PROSPECTUS
<P>
THE AUXER GROUP, INC.
12 ANDREWS DRIVE
WEST PATTERSON, NEW JERSEY 07424
(973) 890-4925
<P>
200,000 SHARES OF COMMON STOCK
<P>
The shares of common stock, $0.001 par value per
share, of Auxer offered hereby (the "Shares") will be
sold from time to time by Eugene Chiaramonte, Jr., the
Company's President and the individual listed under the
Selling Shareholder section of this document (the
"Selling Shareholder"). The Selling Shareholder, the
Company's President, Eugene Chiaramonte, Jr. is required
to be listed as a Selling Shareholder of 200,000 Shares
in this Reoffer Prospectus since he is deemed to hold
control securities. Mr. Chiaramonte's Shares were
previously registered pursuant to Auxer's Nonstatutory
Stock Option Plan filed on Form S-8 with the SEC on May
23,2000.
<P>
The sales may occur in transactions on the National
Quotations Bureau Pink Sheets or the OTC Electronic
Bulletin Board (the Company is presently listed on the
National Quotations Bureau Pink Sheets but is attempting
to be re-listed on trhe OTC Electronic Bulletin Board) at
prevailing market prices or in negotiated
transactions. Auxer will not receive proceeds from any
of the sale the Shares. Auxer is paying for the expenses
incurred in registering the Shares.
<P>
The Shares are "restricted securities" under the 1933
Act before their sale under the Reoffer Prospectus.
The Reoffer Prospectus has been prepared for the purpose
of registering the Shares under the 1933 Act to allow
for future sales by the Selling Shareholders to the
public without restriction. To the knowledge of the
Company, the Selling Shareholders have no arrangement
with any brokerage firm for the sale of the Shares. The
Selling Shareholders may be deemed to be an
"underwriter" within the meaning of the 1933 Act. Any
commissions received by a broker or dealer in connection
with resales of the Shares may be deemed to be
underwriting commissions or discounts under the 1933
Act.
<P>
Auxer's common stock is currently traded on the
National Quotations Bureau Pink Sheets under the symbol
"AXGI."
<P>
----------------------------
<P>
This investment involves a high degree of risk.
Please see "Risk Factors" beginning on page 7.
<P>
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR
ANY STATE SECURITIES COMMISSION HAS APPROVED OR
DISAPPROVED OF THESE SECURITIES OR DETERMINED WHETHER
THIS REOFFER PROSPECTUS IS TRUTHFUL OR COMPLETE.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
<P>
----------------------------
<P>
May 25, 2000
<P>
TABLE OF CONTENTS
<TABLE>
<S> <C>
Where You Can Find More Information 1
Incorporated Documents 2
The Company 2
Risk Factors 7
Use of Proceeds 8
Selling Shareholders 8
Plan of Distribution 9
Legal Matters 9
Experts 10
</TABLE>
<P>
-----------------------------
<P>
You should only rely on the information incorporated by
reference or provided in this Reoffer Prospectus or any
supplement. We have not authorized anyone else to
provide you with different information. The Shares
are not being offered in any state where the offer is
not permitted. You should not assume that the
information in this Reoffer Prospectus or any supplement
is accurate as of any date other than the date on
the front of this Reoffer Prospectus.
<P>
WHERE YOU CAN FIND MORE INFORMATION
<P>
Auxer is required to file annual, quarterly and
special reports, proxy statements and other
information with the Securities and Exchange Commission
(the "SEC") as required by the Securities Exchange Act
of 1934, as amended (the "1934 Act"). You may read and
copy any reports, statements or other information we file
at the SEC's Public Reference Rooms at:
450 Fifth Street, N.W., Washington, D.C. 20549; Seven
World Trade Center, 13th Floor, New York, N.Y. 10048.
Please call the SEC at 1-800-SEC-0330 for further
information on the Public Reference Rooms. Our filings
are also available to the public from commercial document
retrieval services and the SEC website
(http://www.sec.gov).
<P>
INCORPORATED DOCUMENTS
<P>
The SEC allows Auxer to "incorporate by reference"
information into this Reoffer Prospectus, which means
that the Company can disclose important information
to you by referring you to another document filed
separately with the SEC. The information incorporated by
reference is deemed to be part of this Reoffer
Prospectus, except for any information superseded by
information in this Reoffer Prospectus.
<P>
Auxer's Form 10-SB and Form 10-QSB for the period ending
March 31, 2000 filed on May 15, 2000, are incorporated
herein by reference. In addition, all documents filed or
subsequently filed by the Company under Sections 13(a),
13(c), 14 and 15(d) of the 1934 Act, before the
termination of this offering, are incorporated by
reference.
<P>
The Company will provide without charge to each person
to whom a copy of this Reoffer Prospectus is delivered,
upon oral or written request, a copy of any or all
documents incorporated by reference into this Reoffer
Prospectus (excluding exhibits unless the exhibits are
specifically incorporated by reference into the
information the Reoffer Prospectus incorporates).
Requests should be directed to the Chief Financial Offer
at Auxer at Auxer's executive offices, located at 12
Andrews drive, West Patterson, New Jersey 07424. Auxer's
telephone number is (973) 890-4925. The Company's
corporate Web site address is http://www.auxer.com.
<P>
THE COMPANY
<P>
The Auxer Group, Inc. was incorporated in Idaho on June
24, 1920 under the name "The Auxer Gold Mines, Inc." (the
"Auxer"). The Company's original business was mining.
Auxer's life was changed from a life of 50 years to a
term of existence of perpetuity on August 27, 1960. In
1972 the mining assets were transferred to Idora Silver
Mines, Inc. and Auxer maintained a dormant status for a
majority of the 1970's and 1980's.
<P>
Effective May 2, 1994, the National Association of
Securities Dealers (NASD) cleared Auxer's request for
unpriced quotation on the OTC Electronic Bulletin Board
for the Auxer Gold Mines common stock under the symbol
AUXI. On April 18,1995, Auxer acquired all of the issued
and outstanding shares of CT Industries, which became our
wholly owned subsidiary. CT's assets included the
distribution rights to an oil treatment formulation,
specifically Formula 2000. Auxer issued 4,000,000 shares
of its common stock to shareholders of CT Industries.
Upon consummation of such acquisition, Auxer moved its
offices to Ridgewood, New Jersey. Auxer continued to
develop the engine treatment and test market the product
it acquired from CT Industries through infomercials and
by sponsoring regional races.
<P>
In 1996, Auxer established Wayne, New Jersey as its
principal place of business and acquired the issued and
outstanding shares of two companies. Firstly, on February
8, 1996, it acquired Universal Filtration Industries,
Inc. ("Universal Filtration"), a company that
manufactured and delivered products for dry cleaners. On
March 24, 1999, the Company's board of directors approved
closing down Universal Filtrations operating account.
Currently, Universal Filtration is dormant with no
operating activity. Auxer issued 1,500,000 of its
shares of common stock to Universal Filtration
shareholders for all the outstanding shares of Universal
Filtration. 500,000 of the 1,500,000 shares were issued
and delivery was contingent upon meeting various
performance objectives. Universal Filtration is no
longer an active subsidiary. Secondly, on October 25,
1996, Auxer acquired Harvey Westbury Corporation,
Inc.("Harvey Westbury") a light manufacturer and
wholesaler of aftermarket automotive products. Auxer
issued 170,000 shares of its common stock to Harvey
Westbury shareholders or their designees for all
outstanding shares of Harvey Westbury Corp. Both
acquisitions have been accounted for as reverse
acquisitions using the purchase method of accounting with
historic costs being the basis for value. Consideration
value was based upon the market value of Auxer's
securities at the time of the acquisition.
<P>
In early 1997, Auxer attempted to broaden its development
through a series of strategic investments in software
companies located in the United Kingdom. Auxer's
investments in the UK software group were developed in
conjunction with two key individuals, Robert Smith,
former President of Burroughs, London England and ITT
Caribbean Manufacturing, Puerto Rico; and Danny
Chapchal, currently Managing Director of Cambridge
Display Technology, Cambridge, England. The software
group was organized to create a spectrum of software
applications geared to the expanding asset care and
management markets. The software group attempted to
compete globally within the asset care market and the
enterprise resource market.
<P>
In August, 1997 shareholders of Auxer voted to exchange
their shares on a one for one basis for shares in The
Auxer Group, Inc., the new Delaware corporation (the
"Company"). The Company, was incorporated in the State
of Delaware on August 11, 1997 and was authorized to
issue 25,000,000 shares at $.001 par value. Of those
shares, 20,000,000 shares were for common stock, while
the remaining 5,000,000 shares were for preferred stock.
On September 22, 1997, the Company filed an amendment to
its articles of incorporation whereby it increased its
authorized shares to 75,000,000 at a par value of $.001
per share. Of those shares, 50,000,000 shares are
common stock, while the remaining 25,000,000 shares
are preferred stock. In August, 1997, Auxer merged into
the Company. Effective on or about August 7th, 1997, the
Company began trading on the OTC Electronic Bulletin
Board under the symbol AXGI.
<P>
In June 1998, the Company divested itself of its software
business for the amount of the investment, $353,000,
which was received in the form of a promissory note to be
repaid upon certain criteria being met. As of September
30, 1999, the Company determined the collectability of
the promissory note was doubtful and wrote it off.
<P>
On March 19, 1999 the Company amended its articles of
incorporation to increase the number of shares the
Company had authority to issue to 175,000,000 shares
at a par value of $.001 par value per share. Of such
shares, 150,000,000 are common stock, while the remaining
25,000,000 shares are preferred stock.
<P>
On April 22, 1999, the Company purchased automotive parts
inventory from Ernest DeSaye, Jr., employed Mr. DeSaye
and placed these assets in Hardyston Distributors, Inc.,
one of the Company's wholly owned subsidiaries.
Hardyston was incorporated in New Jersey on April 22,
1999. The Company issued 836,700 shares of its common
stock plus $15,000 cash for the purchase of the
automotive parts inventory to Ernest DeSaye, Jr.
<P>
The following sets forth the valuation of the above-
referenced acquisitions based on the value per share:
<P>
<TABLE>
<S> <C> <C>
Acquisition Price Per Share Less than Fair
Market Value
(i)Universal Filtration $.05 No
(ii) Harvey Westbury $.50 No
(iii) Hardyston Distributors $.1075 No
(iv) CT Industries $.001 No
</TABLE>
<P>
Effective January 4, 1999, the National Association of
Securities Dealers ("NASD") enacted the OTC Bulletin
Board Eligibility Rule ("Eligibility Rule"). To be
compliant with the Eligibility Rule, a company must be
registered with the SEC under Section 13 or 15(d) of the
Securities and Exchange Act of 1934 and be current in its
required filings. To be current in its required filings
a company must have filed its latest required annual
filing and any subsequent filings. Alternatively, an
issuer who has recently filed its Form 10 or Form 10-SB
must have cleared all comments by the SEC. The Company
did not meet the new requirements to continue trading on
the OTC Bulletin Board, and its quotation was
discontinued. Effective September 4, 1999, the Company
began trading on the National Quotation Bureau Pink
Sheets.
<P>
Our auditors have stated in their opinion that there is
substantial doubt regarding our ability to continue as a
going concern. We were a development stage company with
limited revenues, a history of significant losses and a
substantial accumulated deficit as at the end of our
calendar year 1997. However, presently we are not a
development stage company.
<P>
Neither the Company nor any of its subsidiaries has filed
any petition for bankruptcy and is not aware of any
actions related to bankruptcy. Furthermore, there are no
known personnel of the Company who currently have any
petitions filed under the Bankruptcy Act or under any
state insolvency laws.
<P>
BUSINESS OF THE ISSUER
<P>
The Company is a holding company which currently owns
four (4) subsidiaries: The Harvey Westbury Corporation
Inc. ("HW"), CT Industries, Inc. ("CT"), Hardyston
Distributors ("HD") and Universal Filtration Industries,
Inc. ("UFI") which is currently dormant. Harvey Westbury
accounted for approximately 54% of the Company's total
revenue in 1999. The Company assembles and packages
automotive accessories under the name, Easy Test, sells
engine treatment under the name, Formula 2000 Ultimate
and sells waxes and polishes under the name, Garry's
Royal Satin to the automotive, marine, and aviation
industries. Hardyston Distributors, Inc. is a distributor
of automotive parts and accessories to local mechanics,
service stations and dealers which account for
approximately 45% of the Company's revenue in 1999. CT
Industries, Inc. is a subsidiary currently set up to
house the Internet and retail sales which account for
less than 1% of the Company's total revenue. The Company
intends to continue these operations in the future.
<P>
In 1998, management continued development and sales of
the Garry's Marine Care Products line and completed
testing of Formula 2000 Ultimate. The first
production run of Ultimate 2000 was completed. The
Company believes that Easy Test sales suffered from a
warm winter across the United States. The beginning of
1998 proved to be a difficult period for the Company in
the software investment as well. Unfortunately, the
person expected to be the Company's primary financier,
Robert Smith, unexpectedly passed away in January of
1998, and as a result, management was forced to
divest itself of the software program. With the loss of
our financing, the Company opted to accept an offer by
Mr. Chapchal to purchase its software operations rather
than further drain the Company's cash flow position
and risk further delay of the advancement of its new
automotive products. The Company and Mr. Chapchal
completed arrangements to turn over the software division
in June 1998 while structuring the sale in such a manner
that the Company could recoup its investment. However,
the cash flow drain on the Company proved to be a burden
the remainder of the year as the Company was forced to
direct a majority of the arranged financing for the
automotive companies to the software investment.
<P>
Additionally, the Company completed development of the
marine product line and began trying to reduce the costs
of IT silicone spray. With the cash flow strain Harvey
Westbury's sales and marketing plans were crippled and
the Company saw much of the planned sales deteriorate
due to inability to deliver in a timely fashion as
maintaining adequate inventory was not possible.
Additionally, layoffs in operations and sales were
required. The reduced sales group tried to focus on
marketing and selling of the Garry's Marine products line
and the Easy Test line as well as launch Formula 2000
during the Fall 98 buying season. The group's focus
turned from development to sales and marketing during
this period but the
impact was limited due to funding.
<P>
In 1999, management focused on marketing the Garry's
Royal Satin marine care products line and developing the
Easy Test line. Additionally, management focused on
developing Hardyston Distributors.
<P>
POINTS OF OPERATION
<P>
Auxer, CT Industries, Harvey Westbury and Hardyston all
maintain their headquarters and administrative operations
in West Paterson, New Jersey. Additionally, Harvey
Westbury maintains its main sales office in West
Paterson, New Jersey. Harvey Westbury manufacturers and
warehouses in West Paterson, New Jersey. The Easy Test
product components are primarily manufactured by various
vendors throughout the United States and Internationally
and assembled/packaged at the West Paterson, New Jersey
location. Garry's waxes, polishes, and chemicals, as
well as Formula 2000 Engine Treatment are manufactured
and private labeled by several vendors throughout the
United States and warehoused at the West Paterson, New
Jersey location. Hardyston Distributor's has an
additional location in Franklin, New Jersey. Hardyston
distributes automotive parts and accessories to the
surrounding area automotive stores and service stations.
Hardyston warehouses parts inventory and a small
distribution staff at the Franklin location. The Company
currently employs 5 employees at Hardyston and 5
employees at Harvey Westbury.
<P>
GOVERNMENT REGULATION
<P>
While numerous government regulations are developed
directed at the automotive and marine industries on an
on-going basis; the Company does not believe that there
are any significant government regulations pending that
would impact the current product categories that the
Company is currently marketing and selling.
<P>
INTELLECTUAL PROPERTY
<P>
The Company does not own any material property in the
form of patents.
<P>
The Company's subsidiary, Harvey Westbury, sells
automotive accessories under the name Easy Test, which is
a registered trademark, number 942648 which was
registered on September 12, 1972 and renewed in 1993.
The Company does not have any contractual agreements or
licensing arrangements for these products. There are no
patents held by third parties. Additionally, Harvey
Westbury sells waxes and polishes under the name Garry's
Royal Satin, which is not a registered trademark. Harvey
Westbury previously was a distributor for Garry's
Laboratories based in Buffalo, New York. Garry's
Laboratories registered and owned the trademark.
However, Garry's Laboratories ceased doing business and
the trademark registration expired. Harvey Westbury has
continued to distribute the product under the trade name
"Garry's Royal Satin." Harvey Westbury's Garry's
chemical based products are manufactured and packaged by
a third party chemical manufacturer in New York. The
Company does not have any contractual agreements or
licensing arrangements with ots suppliers for these
products. There are no patents held by third parties.
The formulations for the products were developed by the
manufacturer.
<P>
In October 1995, Universal Filtration entered into an
agreement with William Hayday for the purchase of the
worldwide non-transferable rights to market the Fiona
Button Trap Filter and the rights to make any future
modification to the design. The term of the agreement
was October 1, 1995 until September 30, 1999. The
agreement has expired.
<P>
On May 23, 1996, CT Industries entered into a supply
agreement with MotionLube, licensee of patented
technology relating to vehicular and machinery lubricants
covered by Patent No. 5,385,683 whereas MotionLube will
manufacture or cause to be manufactured the product
covered above which will be sold under the name Formula
2000. The term of the agreement was for one year from
the date of the agreement, which will automatically renew
annually provided no violations by either party. The
agreement was not renewed after the first year.
Subsequently, the Company created a new formula,
specifically Formula 2000 Ultimate, which Harvey-Westbury
markets and sells.
<P>
Harvey Westbury does not have any contractual agreements
or licensing arrangements with its suppliers for Garry's
Royal Satin products. There are no patents held by third
parties or by Harvey Westbury.
<P>
Harvey Westbury does not have any contractual agreements
or licensing arrangements with its suppliers for these
products. There are no patents held by third parties.
The formulations for the products were developed by the
manufacturer. Harvey Westbury owns the rights to the
formulas for Garry's Royal Satin and Garry's Royal Satin
Liquid. The supplier owns the rights to the formulas for
the rest of the products under the Garry's line.
<P>
Auxer does not have any contractual agreements or
licensing arrangements with its suppliers for the Formula
2000 products. There are no patents held by third
parties. Auxer owns the rights to the formula for these
products.
<P>
Hardyston Distributors does not have any contractual
agreements or licensing arrangements with its suppliers
for Garry's Royal Satin products. Hardyston Distributors
purchases automotive parts for resale.
<P>
RISK FACTORS
<P>
In this section we highlight some of the risks
associated with Auxer's business and operations.
Prospective investors should carefully consider the
following risk factors when evaluating an investment in
the Shares offered by this Reoffer Prospectus.
<P>
FORWARD-LOOKING STATEMENTS AND ASSOCIATED RISKS.
Management believes the information contained in this
prospectus contains "forward-looking statements" which
can be identified by the use of forward-looking
terminology such as "believes," "expects," "may,"
"should" or "anticipates" or the negative thereof or
other variations thereon or comparable terminology or
discussions of strategy. No assurance can be given that
the future results covered by the forward-looking
statements will be achieved. The following Risk factors
include, among other things, cautionary statements with
respect to certain forward-looking statements, including
statements of certain risks and uncertainties that could
cause actual results to vary materially from the future
results referred to in such forward-looking statements.
<P>
NEED FOR SUBSTANTIAL ADDITIONAL CAPITAL. The Company
remains in need of substantial financing from sources
other than operations in order to cover its overhead and
to maintain and expand its operations. To date, we have
relied mostly on private funding from the sale of
restricted shares of our Common Stock and short term
borrowing to fund our operations. To date, we have
generated insufficient revenue to meet our ongoing
expenses and have extremely limited cash liquidity and
capital resources. Our future capital requirements
will depend on many factors, including our ability to
market our products successfully, our cash flow from
operations, and competing market developments. Our
business plan requires additional funding beyond the
proceeds previously generated from the sale of our
restricted Common Stock. Consequently, although we
currently have no specific plans or arrangements for
financing, we intend to raise additional funds through
private placements, public offerings or other financings.
Any equity financings would result in dilution to
our then-existing shareholders. Additionally, sources
of debt financing may result in higher interest expense.
Any financing, if available, may be on terms
unfavorable to us. If adequate funds are not obtained,
we may be required to reduce or curtail operations.
We currently anticipate that our existing capital
resources will not be adequate to satisfy our current
operating expenses and capital requirements for the next
full fiscal year. Consequently, we may have to
secure additional financing in order to develop and
expand our operations.
<P>
THERE IS A LIMITED PUBLIC TRADING MARKET FOR OUR COMMON
STOCK. Our Common Stock presently trades on the OTC
Electronic Bulletin Board under the symbol AXGI. There
can be no assurance, however, that such market will
continue or that investors in this offering will be able
to liquidate their shares acquired in this Offering at
the price herein or otherwise. There can be no assurance
that any other market will be established in the future.
There can be no assurance that an investor will be
able to liquidate his or her investment without
considerable delay, if at all. The price of our
Common Stock may be highly volatile. Additionally, the
factors discussed in this Risk Factors section may
have a significant impact on the market price of the
shares offered in this Reoffer Prospectus.
<P>
WE HAVE NEVER BEEN PROFITABLE AND MAY NOT BE PROFITABLE
IN THE FUTURE. We have incurred losses in our business
operation since our inception. We expect to
continue to lose money for the foreseeable future, and
we do not know when we will become profitable, if at
all. Failure to achieve and maintain profitability
may adversely affect the market price of our common
stock.
<P>
STOCK OWNERSHIP OF MANAGEMENT. As of May 23, 2000,
the present directors and executive officers, and
their respective affiliates beneficially owned
approximately 6.4% of our outstanding common stock. As a
result of their ownership, the directors and
executive officers and their respective affiliates
collectively are not able to significantly influence
matters requiring shareholder approval, including the
election of directors and approval of significant
corporate transactions. This lack of concentration of
ownership may also have the effect of delaying or
preventing a change in control of Auxer.
<P>
DEPENDENCE ON MANAGEMENT. Our success depends, to a
significant extent, upon certain key employees and
directors, including primarily, Eugene Chiaramonte, Jr.,
Ronald Shaver and Ernest DeSaye, Jr. The loss of
services of one or more of these individuals could have
a material adverse effect on our business. We believe
that our future success will also depend in part upon
our ability to attract, retain and motivate qualified
personnel. There can be no assurance that we will be
successful in attracting and retaining such personnel.
We currently do not maintain a policy of key man life
insurance on any of the above individuals.
<P>
SHARES ELIGIBLE FOR FUTURE SALE. At the conclusion of
this offering, a maximum of 79,112,030 shares of
our Common Stock will be issued and outstanding, of
which approximately 5,953,750 shares will be
"restricted securities," and under certain circumstances
may, in the future, be sold in compliance with Rule 144
adopted under the Securities Act. In general, under
Rule 144, subject to the satisfaction of certain other
conditions, a person, including an affiliate of Auxer,
who has beneficially owned restricted shares of Common
Stock for at least one year is entitled to sell, in
certain brokerage transactions, within any three-month
period, a number of shares that does not exceed the
greater of 1% of the total number of outstanding shares
of the same class, or if the Common Stock is quoted on
the National Quotations Bureau or another recognized
stock exchange, the average weekly trading volume during
the four calendar weeks immediately preceding the
sale. A person who presently is not and who has not
been an affiliate of Auxer for at least three months
immediately preceding the sale and who has beneficially
owned the shares of Common Stock for at least two
years is entitled to sell such shares under Rule 144
without regard to any of the volume limitations
described above.
<P>
AUTHORIZATION OF ADDITIONAL SHARES OF COMMON STOCK.
Our Articles of Incorporation authorize the issuance of
up to 150,000,000 shares of Common Stock. Our Board of
Directors has the authority to issue additional shares of
Common Stock and to issue options and warrants to
purchase shares of our Common Stock without shareholder
approval. Future issuance of Common Stock could be
at values substantially below current market prices
therefore could represent further substantial dilution
to investors in this Offering. In addition, the Board
could issue large blocks of voting stock to fend off
unwanted tender offers or hostile takeovers without
further shareholder approval.
<P>
AUTHORIZATION OF ADDITIONAL SHARES OF PREFERRED
STOCK. Our Articles of Incorporation also authorizes
the issuance of up to 25,000,000 shares of Preferred
Stock in one or more series. Consequently, our Board
of Directors have the authority to fix the number of
preferred shares and to determine or alter for each
such series, such voting powers, full or limited, or no
voting powers, and such designations, preferences, and
relative, participating, optional, or other rights and
such qualifications, limitations, or restrictions
thereof, in a resolution or resolutions adopted by
the Board of Directors providing for the issue of
such shares. The Board of Directors are also
authorized to increase or decrease (but not below the
number of shares of such series then outstanding) the
number of shares of any series subsequent to the issue of
shares of that series.
<P>
USE OF PROCEEDS
<P>
Auxer will not receive any of the proceeds from the sale
of Shares by the Selling Shareholders.
<P>
SELLING SHAREHOLDERS
<P>
The Shares of the Company to which this Reoffer
Prospectus relates are being registered for reoffers
and resales by the Selling Shareholder, the Company's
President, Eugene Chiaramonte, Jr. who is required to be
listed as a Selling Shareholder of 200,000 Shares in this
Reoffer Prospectus since he is deemed to hold control
securities. Mr. Chiaramonte's Shares were previously
registered pursuant to Auxer's Nonstatutory Stock Option
Plan filed on Form S-8 with the SEC on May 23, 2000. The
Selling Shareholder may resell all, a portion or
none of such Shares from time to time.
<P>
The table below sets forth with respect to the Selling
Shareholder, based upon information available to the
Company as of May 23, 2000, the number of Shares
owned, the number of Shares registered by this Reoffer
Prospectus and the number and percent of outstanding
Shares that will be owned after the sale of the
registered Shares assuming the sale of all of the
registered Shares.
<P>
<TABLE>
<S> <C> <C> <C>
Name of Number of Shares to Shares to be
Selling Shareholder Shares Owned Be Offered Owned After Offering
------------------- ------------------ -------------- --------------------
Eugene Chiaramonte, Jr.(1) 2,373,886 200,000 2,173,886
</TABLE>
<P>
(1) The Company's President, Eugene Chiaramonte, Jr.
is required to be listed as a Selling Shareholder of
200,000 Shares in this Reoffer Prospectus since he is
deemed to hold control securities. Mr. Chiaramonte's
Shares were previously registered pursuant to Auxer's
Nonstatutory Stock Option Plan filed on Form S-8 with the
SEC on May 23, 2000.
<P>
PLAN OF DISTRIBUTION
<P>
The Selling Shareholder may sell the Shares for value
from time to time under this Reoffer Prospectus in one
or more transactions on the OTC Electronic Bulletin
Board, or other exchange, in a negotiated transaction
or in a combination of such methods of sale, at
market prices prevailing at the time of sale, at
prices related to such prevailing market prices or at
prices otherwise negotiated. The Selling Shareholder
may effect such transactions by selling the Shares to or
through brokers-dealers, and such broker-dealers may
receive compensation in the form of underwriting
discounts, concessions or commissions from the Selling
Shareholder and/or the purchasers of the Shares for whom
such broker-dealers may act as agent (which compensation
may be less than or in excess of customary commissions).
<P>
The Selling Shareholder and any broker-dealers
that participate in the distribution of the Shares may
be deemed to be "underwriters" within the meaning of
Section 2(11) of the 1933 Act, and any commissions
received by them and any profit on the resale of the
Shares sold by them may be deemed be underwriting
discounts and commissions under the 1933 Act. All
selling and other expenses incurred by the Selling
Shareholders will be borne by the Selling Shareholders.
<P>
In addition to any Shares sold hereunder, the Selling
Shareholder may, at the same time, sell any shares of
common stock, including the Shares, owned by him or her
in compliance with all of the requirements of Rule 144,
regardless of whether such shares are covered by
this Reoffer Prospectus.
<P>
There is no assurance that the Selling Shareholder will
sell all or any portion of the Shares offered. The
Company will pay all expenses in connection with this
offering other than the legal fees incurred in
connection with the preparation of this registration
statement and will not receive any proceeds from
sales of any Shares by the Selling Shareholder.
<P>
LEGAL MATTERS
<P>
Certain legal matters in connection with the Common
Shares being registered herein will be passed upon for
the Company by Richard I. Anslow & Associates, 4400 Route
9, 2nd Floor, Freehold, NJ 07728. Richard I. Anslow,
the principal of Richard I. Anslow & Associates owns
200,000 shares of the Company's Common Stock which shares
are being registered pursuant to another Form S-8 to be
filed by the Company immediately subsequent to the filing
of this Form S-8 Registration Statement.
<P>
EXPERTS
<P>
The financial statements and the related financial
statement schedules incorporated in this Reoffer
prospectus by reference from the Company's Form 10-SB and
Form 10-QSB for the quarter ending March 31, 2000 have
been audited and reviewed, respectively, by Edelman &
Kalosieh, CPAs, P.A., independent auditors, as stated in
their report which is incorporated herein by reference ,
and have been so incorporated in reliance upon the report
of such firm given upon their authority as experts in
accounting and auditing as stated in their report.
<P>
PART II
<P>
Item 3. Incorporation of Documents by Reference.
<P>
The following documents are incorporated by reference in
this Registration Statement and made a part hereof:
<P>
(a) General Form For Registration of Securities of
Small Business issuer on Form 10-SB and all Exhibits
thereto filed pursuant to Section 12(g) of the Exchange
Act of 1934, as amended (the "1934 Act") (File No. 000-30440);
<P>
(b) The Company's Quarterly Report on Form 10-QSB for
the quarter ended March 31, 2000 filed pursuant to
Section 15(d) of the 1934 Act.
<P>
(c) All other documents filed by the Company after
the date of this Registration Statement under Section
13(a), 13(c), 14 and 15(d) of the 1934 Act, after the
date hereof and prior to the filing of a post-effective
amendment to the Registration Statement which indicates
that all securities offered have been sold or which
deregisters all securities then remaining in the
Registration Statement and to be part thereof from the
date of filing of such documents.
<P>
Item 4. Description of Securities.
<P>
Not Applicable.
<P>
Item 5. Interest of Named Experts and Counsel.
<P>
Certain legal matters in connection with the Common
Shares being registered herein will be passed upon for
the Company by Richard I. Anslow & Associates, 4400 Route
9, 2nd Floor, Freehold, NJ 07728. Richard I. Anslow,
the principal of Richard I. Anslow & Associates owns
200,000 shares of the Company's Common Stock which shares
are being registered pursuant to another Form S-8 to be
filed by the Company immediately subsequent to the filing
of this Form S-8 Registration Statement.
<P>
Item 6. Indemnification of Directors and Officers.
<P>
The Certificate of Incorporation and By-laws of the
Company provide that the Company shall indemnify to the
fullest permitted by Delaware law any person whom it may
indemnify thereunder, including directors, officers,
employees and agents of the Company. Such
indemnification (other than as ordered by a court) shall
be made by the Company only upon a determination that
indemnification is proper in the circumstances because
the individual met the applicable standard of conduct
i.e., such person acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best
interest of the Company. Advances for such
indemnification may be made pending such determination.
Such determination shall be made by a majority vote of a
quorum consisting of disinterested directors, or by
independent legal counsel or by the stockholders. In
addition, the Certificate of Incorporation provides for
the elimination, to the extent permitted by Delaware law,
of personal liability of directors to the Company and its
stockholders for monetary damages for breach of fiduciary
duty as directors.
<P>
The Company has also agreed to indemnify each director
and executive officer pursuant to an Indemnification
Agreement with each such director and executive officer
from and against any and all expenses, losses, claims,
damages and liability incurred by such director or
executive officer for or as a result of action taken or
not taken while such director or executive officer was
acting in his capacity as a director, officer, employee
or agent of the Company. The obligations of the Company
for indemnification is limited to the extent provided in
the Delaware Business Corporation Act and is also limited
in situations where, among others, the indemnitee is
deliberately dishonest, gains any profit or advantage to
which he is not legally entitled or is otherwise
indemnified.
<P>
Insofar as indemnification for liabilities arising under
the Securities Act of 1933, as amended (the "1933 Act")
may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing
provisions, or otherwise, the Company has been advised
that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy
as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for
indemnification against such liabilities (other than the
payment by the Company of expenses incurred or paid by a
director, officer or controlling person of the Company in
the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling
person in connection with the securities being
registered, the Company will, unless in the opinion of
its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction
the question of whether such indemnification by it is
against public policy as expressed in the Securities Act
and will be governed by the final adjudication of such
issue.
<P>
Item 7. Exemption From Registration Claimed.
<P>
Not Applicable.
<P>
Item 8. Exhibits.
<P>
<TABLE>
<S> <C>
Number Description
4.1 Consulting Agreement dated May 11, 2000 between
the Company and James Tilton.
<P>
4.2 Consulting Agreement dated May 15, 2000 between
the Company and William Wheeler.
<P>
4.3 Consulting Agreement dated April 17, 2000 between
the Company and Richard I. Anslow
<P>
4.4 Consulting Agreement dated May 23, 2000 between the
Company and Pat Rost.
<P>
4.5 Consulting Agreement dated May 1, 2000 between
the Company and Eugene Ciarelli.
<P>
4.6 Consulting Agreement dated May 1, 2000 between
the Company and Jim Morisco
<P>
4.7 Employment Agreement dated May 1, 2000 between
The Company and Eugene Chiaramonte, Jr.
<P>
4.8 Consulting Agreement dated May 20, 2000 between
The Company and Mark Neuhaus
<P>
5.1 Consent and Opinion of Richard I. Anslow & Associates.
<P>
23.1 Consent of Edelman and Kalosieh, Certified Public
Accountants, P.A.
<P>
</TABLE>
Item 9. Undertakings.
<P>
The undersigned registrant hereby undertakes:
<P>
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
Registration Statement:
<P>
(a) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933.
<P>
(b) To reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate,
represent a fundamental change in the information set
forth in the Registration Statement; and
<P>
(c) To include any material information with respect
to the plan of distribution not previously disclosed in
the Registration Statement or any material change to such
information in the Registration Statement.
<P>
Provided, however, that paragraphs (1)(a) and (1)(b) do
not apply if the Registration Statement is on Form S-3 or
Form S-8 and the information required to be included in a
post-effective amendment by this paragraphs is contained
in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the 1934 Act that are
incorporated by reference in the Registration Statement.
<P>
(2) That, for the purpose of determining any
liability under the 1933 Act, each such post-effective
amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and
the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
<P>
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
<P>
(4) That, for purposes of determining any liability
under the 1933 Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d)
of the 1934 Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section
15(d) of the 1934 Act) that is incorporated by reference
in the Registration Statement shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof.
<P>
(5) To deliver or cause to be delivered with the
prospectus, to each person to whom the prospectus is sent
or given, the latest annual report to security holders
that is incorporated by reference in the prospectus and
furnished pursuant to and meeting the requirements of
Rule 14a-3 or Rule 14c-3 under the 1934 Act; and, where
interim financial information required to be presented by
Item 310(b) of Registration S-B is not set forth in the
prospectus, to deliver, or cause to be delivered, to each
person to whom the prospectus is sent or given, the
latest quarterly report that is specifically incorporated
by reference in the prospectus to provide such interim
financial information.
<P>
(6) To deliver or cause to be delivered with the
prospectus to each employee to whom the prospectus is
sent or given, a copy of the Registrant's annual report
to stockholders for its last fiscal year, unless such
employee otherwise has received a copy of such report, in
which case the registration shall state in the prospectus
that it will promptly furnish, without charge, a copy of
such report on written request of the employee. If the
last fiscal year of the Registrant has ended within 120
days prior to the use of the prospectus, the annual
report of the Registrant for the preceding fiscal year
may be so delivered, but within such 120-day period the
annual report for the last fiscal year will be furnished
to each such employee.
<P>
(7) To transmit or cause to be transmitted to all
employees participating in the Plans who do not otherwise
receive such material as stockholders of the Registrant,
at the time and in the manner such material is sent to
its stockholders, copies of all reports, proxy statements
and other communications distributed to its stockholders
generally.
<P>
SIGNATURES
<P>
Pursuant to the requirements of the Securities Act of
1933, the Registrant certifies that it has reasonable
grounds to believe that it meets all of the requirements
for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the
undersigned, there unto duly authorized, in the Borough
of West Patterson, State of New Jersey, on May 25, 2000.
<P>
THE AUXER GROUP, INC.
<P>
/s/ Eugene Chiaramonte, Jr.
----------------------------
Eugene Chiaramonte, Jr.
Chairman, Chief Executive
Officer and President
<P>
Pursuant to the requirements of the Securities Act of
1933, this Registration Statement has been signed below
by the following persons on behalf of the Registrant and
in the capacities and on the dates indicated.
<P>
Signatures Date
<P>
/s/ Eugene Chiaramonte, Jr. May 25, 2000
-------------------------------
Eugene Chiaramonte, Jr.
Chairman, Chief Executive Officer
and President
<P>
EXHIBIT 4.1
<P>
CONSULTING AGREEMENT
<P>
This Agreement is made as of this May 11, 2000, by and
between The Auxer Group, Inc., ("the Company") a
corporation duly organized and existing under the laws of
New Jersey, with offices at 12 Andrews Drive, West
Paterson, New Jersey 07424 and ("the Consultant") James
Tilton, 127 South 6th Street, Louisville, KY 40202.
<P>
WHEREAS, the Company is engaged in the business of
acquiring and investing in businesses with high growth
potential, and Consultants provide business and
acquisition strategy,
<P>
WHEREAS, the Consultant provides business and acquisition
strategy services,
<P>
WHEREAS, the Company wishes to retain the services of the
Consultants on the following terms and conditions:
<P>
1. The Company hereby retains the services of the
Consultant for a period of two (2) years and terminating
on December 31, 2002. In exchange for the Consulting
Services (as that term is defined herein), the
Consultant shall receive 2,250,000 shares.
<P>
2. The Consultant shall, employing their best
efforts, assist the Company by: providing business and
acquisition strategy services.
<P>
3. The Consultant shall be independent contractors
and shall have no right or authority to assume or create
any obligations or responsibility, express or implied, on
behalf of or in the name of the Company, unless
specifically authorized in writing by the Company. No
provision of this Agreement shall be construed to
preclude consultant from pursuing other consulting or
design and development projects.
<P>
4. The Consultant (including any person or entity
acting for or on behalf of the Consultant) shall not be
liable for any mistakes of fact, errors of judgment, for
losses sustained by the company or any subsidiary or for
any acts or omissions of any kind, unless caused by the
negligence or intentional misconduct of the Consultants
or any person or entity acting for or on behalf of the
Consultants.
<P>
5. The Company and its present and future
subsidiaries jointly and severally, agree to indemnify
and hold harmless the Consultant against any loss,
claim, damage or liability whatsoever, (including
reasonable attorneys' fees and expenses), to which such
Indemnified Party may become subject as a result of
performing any act (or omitting to perform any act)
contemplated to be performed by the Consultants pursuant
to this Agreement if such act or omission did not violate
the provisions of Section 4 of this Agreement. So long
as the Company has not provided counsel to the
Indemnified Party in accordance with the terms of this
Agreement, the Company and its subsidiaries agree to
reimburse the defense of any action or investigation
(including reasonable attorney's fees and expenses),
subject to any understanding from such Indemnified Party
to repay the Company or its subsidiaries if it is
ultimately determined that such Indemnified Party is not
entitled to such indemnity. In case any action, suit or
proceeding shall be brought or threatened, in writing,
against any Indemnified Party, it shall notify the
Company within twenty (20) days after the Indemnified
Party receives notice of such action, suit or such
threat. The Company shall have the right to appoint the
Company's counsel to defend such action, suit or
proceeding, provided that such Indemnified Party consents
to such representation by such counsel, which consent
shall not be unreasonably withheld. In the event any
counsel appointed by the Company shall not be acceptable
to such Indemnified Party, then the Company shall have
the right to appoint alternative counsel for such
Indemnified Party reasonably acceptable to such
Indemnified Party, until such time as acceptable counsel
can be appointed. In any event, the Company shall, at
its sole cost and expense, be entitled to appoint counsel
to appear and participate as co-counsel in the defense
thereof. The Indemnified Party, or its co-counsel, shall
promptly supply the Company's counsel with copies of all
documents, pleadings and notices which are filed, served
or submitted in any of the aforementioned. No
indemnified Party shall enter into any settlement without
the prior written consent of the Company, which consent
shall not be unreasonable withheld.
<P>
6. This Agreement shall be binding upon the Company
and the Consultants and their successors and assigns.
<P>
7. If any provision or provisions of this Agreement
shall be held to be invalid, illegal or unenforceable for
any reason whatsoever, (i) the validity, legality and
enforceability of the remaining provisions of this
Agreement (including, without limitation, each portion of
any Section of this Agreement containing any such
provision held to be invalid, illegal or unenforceable)
shall not in any way be affected or impaired thereby; and
(ii) to the fullest extent possible, the provisions of
this Agreement (including, without limitation, each
portion of any Section of this Agreement containing any
such provision held to be invalid, illegal or
unenforceable) shall be construed so as to give effect to
the intent manifested by the provision held, invalid
illegal or unenforceable.
<P>
8. No supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by
both parties hereto. No waiver of any other provisions
hereof (whether or no similar) shall be binding unless
executed in writing by both parties hereto nor shall such
waiver constitute a continuing waiver.
<P>
9. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be
deemed to be an original but all of which shall
constitute one and the same Agreement.
<P>
10. The Parties agree that should any dispute arise
in the administration of this Agreement, that the
agreement shall be governed and construed by the Laws of
the State of New Jersey.
<P>
11. This Agreement contains the entire agreement
between the Parties with respect to the consulting
services to be provided to the Company by the Consultant
and supersedes any and all prior understandings,
agreement or correspondence between the Parties.
<P>
IN WITNESS WHEREOF, the Company and the Consultant have
caused this Agreement to be signed by duly authorized
representatives as of the day and year first above
written.
<P>
THE AUXER GROUP, INC.
/s/ Eugene Chiaramonte, Jr.
- -----------------------------
Eugene Chiaramonte, Jr.
President
<P>
/s/ James Tilton
- -----------------------------
James Tilton (Consultant)
<P>
EXHIBIT 4.2
<P>
CONSULTING AGREEMENT
<P>
This Agreement is made as of this May 15, 2000, by and
between The Auxer Group, Inc., ("the Company") a
corporation duly organized and existing under the laws of
New Jersey, with offices at 12 Andrews Drive, West
Paterson, New Jersey 07424 and ("the Consultant") William
Wheeler, 14955 Horseshoe Trace, Wellington, FL 33414.
<P>
WHEREAS, the Company is engaged in the business of
acquiring and investing in businesses with high growth
potential.
<P>
WHEREAS, the Consultant provides acquisition and internet
strategy services,
<P>
WHEREAS, the Company wishes to retain the services of the
Consultant on the following terms and conditions:
<P>
1. The Company hereby retains the services of the
Consultants for a period of one (1) year and terminating
on May 15, 2001. In exchange for the Consulting Services
(as that term is defined herein), the Consultant shall
receive 1,000,000 shares.
<P>
2. The Consultant shall, employing their best
efforts, assist the Company by: providing acquisition
and internet strategy services.
<P>
3. The Consultant shall be independent contractors
and shall have no right or authority to assume or create
any obligations or responsibility, express or implied, on
behalf of or in the name of the Company, unless
specifically authorized in writing by the Company. No
provision of this Agreement shall be construed to
preclude consultants from pursuing other consulting or
design and development projects.
<P>
4. The Consultant (including any person or entity
acting for or on behalf of the Consultant) shall not be
liable for any mistakes of fact, errors of judgment, for
losses sustained by the company or any subsidiary or for
any acts or omissions of any kind, unless caused by the
negligence or intentional misconduct of the Consultants
or any person or entity acting for or on behalf of the
Consultants.
<P>
5. The Company and its present and future
subsidiaries jointly and severally, agree to indemnify
and hold harmless the Consultant against any loss,
claim, damage or liability whatsoever, (including
reasonable attorneys' fees and expenses), to which such
Indemnified Party may become subject as a result of
performing any act (or omitting to perform any act)
contemplated to be performed by the Consultant pursuant
to this Agreement if such act or omission did not violate
the provisions of Section 4 of this Agreement. So long
as the Company has not provided counsel to the
Indemnified Party in accordance with the terms of this
Agreement, the Company and its subsidiaries agree to
reimburse the defense of any action or investigation
(including reasonable attorney's fees and expenses),
subject to any understanding from such Indemnified Party
to repay the Company or its subsidiaries if it is
ultimately determined that such Indemnified Party is not
entitled to such indemnity. In case any action, suit or
proceeding shall be brought or threatened, in writing,
against any Indemnified Party, it shall notify the
Company within twenty (20) days after the Indemnified
Party receives notice of such action, suit or such
threat. The Company shall have the right to appoint the
Company's counsel to defend such action, suit or
proceeding, provided that such Indemnified Party consents
to such representation by such counsel, which consent
shall not be unreasonably withheld. In the event any
counsel appointed by the Company shall not be acceptable
to such Indemnified Party, then the Company shall have
the right to appoint alternative counsel for such
Indemnified Party reasonably acceptable to such
Indemnified Party, until such time as acceptable counsel
can be appointed. In any event, the Company shall, at
its sole cost and expense, be entitled to appoint counsel
to appear and participate as co-counsel in the defense
thereof. The Indemnified Party, or its co-counsel, shall
promptly supply the Company's counsel with copies of all
documents, pleadings and notices which are filed, served
or submitted in any of the aforementioned. No
indemnified Party shall enter into any settlement without
the prior written consent of the Company, which consent
shall not be unreasonable withheld.
<P>
6. This Agreement shall be binding upon the Company
and the Consultant and their successors and assigns.
<P>
7. If any provision or provisions of this Agreement
shall be held to be invalid, illegal or unenforceable for
any reason whatsoever, (i) the validity, legality and
enforceability of the remaining provisions of this
Agreement (including, without limitation, each portion of
any Section of this Agreement containing any such
provision held to be invalid, illegal or unenforceable)
shall not in any way be affected or impaired thereby; and
(ii) to the fullest extent possible, the provisions of
this Agreement (including, without limitation, each
portion of any Section of this Agreement containing any
such provision held to be invalid, illegal or
unenforceable) shall be construed so as to give effect to
the intent manifested by the provision held, invalid
illegal or unenforceable.
<P>
8. No supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by
both parties hereto. No waiver of any other provisions
hereof (whether or no similar) shall be binding unless
executed in writing by both parties hereto nor shall such
waiver constitute a continuing waiver.
<P>
9. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be
deemed to be an original but all of which shall
constitute one and the same Agreement.
<P>
10. The Parties agree that should any dispute arise
in the administration of this Agreement, that the
agreement shall be governed and construed by the Laws of
the State of New Jersey.
<P>
11. This Agreement contains the entire agreement
between the Parties with respect to the consulting
services to be provided to the Company by the Consultant
and supersedes any and all prior understandings,
agreement or correspondence between the Parties.
<P>
IN WITNESS WHEREOF, the Company and the Consultant have
caused this Agreement to be signed by duly authorized
representatives as of the day and year first above
written.
<P>
THE AUXER GROUP, INC.
/s/ Eugene Chiaramonte, Jr.
- ------------------------------
President
<P>
/s/ William Wheeler
- ------------------------------
William Wheeler (Consultant)
<P>
EXHIBIT 4.3
<P>
CONSULTING AGREEMENT
<P>
This Agreement is made as of this April 17, 2000, by and
between The Auxer Group, Inc., ("the Company") a
corporation duly organized and existing under the laws of
New Jersey, with offices at 12 Andrews Drive, West
Paterson, New Jersey 07424 and ("the Consultant") Richard
I. Anslow, Freehold Executive Center, 4400 Rt. 9 South,
2nd Floor, Freehold, NJ 07728.
<P>
WHEREAS, the Company is engaged in the business of
acquiring and investing in businesses with high growth
potential,
<P>
WHEREAS, the Consultant provides legal services,
<P>
WHEREAS, the Company wishes to retain the services of the
Consultant on the following terms and conditions:
<P>
1. The Company hereby retains the services of the
Consultants for a period of two (2) months and
terminating on June 17, 2000. In exchange for the
Consulting Services (as that term is defined herein), the
Consultant shall receive 200,000 shares.
<P>
2. The Consultant shall, employing their best
efforts, assist the Company by: providing legal
services. Such legal services shall specifically not
include legal services performed for capital-raising
transactions or legal services that directly or
indirectly promote or maintain a market for the Company's
stock. If consultant renders such legal services for the
Company, it shall bill its standard hourly rate and be
compensated by Company by payment of cash and not shares
of the Company.
<P>
3. The Consultant shall be independent contractors
and shall have no right or authority to assume or create
any obligations or responsibility, express or implied, on
behalf of or in the name of the Company, unless
specifically authorized in writing by the Company. No
provision of this Agreement shall be construed to
preclude consultants from pursuing other consulting or
design and development projects.
<P>
4. The Consultant (including any person or entity
acting for or on behalf of the Consultant) shall not be
liable for any mistakes of fact, errors of judgment, for
losses sustained by the company or any subsidiary or for
any acts or omissions of any kind, unless caused by the
negligence or intentional misconduct of the Consultant or
any person or entity acting for or on behalf of the
Consultant.
<P>
5. The Company and its present and future
subsidiaries jointly and severally, agree to indemnify
and hold harmless the Consultant against any loss, claim,
damage or liability whatsoever, (including reasonable
attorneys' fees and expenses), to which such Indemnified
Party may become subject as a result of performing any
act (or omitting to perform any act) contemplated to be
performed by the Consultant pursuant to this Agreement if
such act or omission did not violate the provisions of
Section 4 of this Agreement. So long as the Company has
not provided counsel to the Indemnified Party in
accordance with the terms of this Agreement, the Company
and its subsidiaries agree to reimburse the defense of
any action or investigation (including reasonable
attorney's fees and expenses), subject to any
understanding from such Indemnified Party to repay the
Company or its subsidiaries if it is ultimately
determined that such Indemnified Party is not entitled to
such indemnity. In case any action, suit or proceeding
shall be brought or threatened, in writing, against any
Indemnified Party, it shall notify the Company within
twenty (20) days after the Indemnified Party receives
notice of such action, suit or such threat. The Company
shall have the right to appoint the Company's counsel to
defend such action, suit or proceeding, provided that
such Indemnified Party consents to such representation by
such counsel, which consent shall not be unreasonably
withheld. In the event any counsel appointed by the
Company shall not be acceptable to such Indemnified
Party, then the Company shall have the right to appoint
alternative counsel for such Indemnified Party reasonably
acceptable to such Indemnified Party, until such time as
acceptable counsel can be appointed. In any event, the
Company shall, at its sole cost and expense, be entitled
to appoint counsel to appear and participate as
co-counsel in the defense thereof. The Indemnified
Party, or its co-counsel, shall promptly supply the
Company's counsel with copies of all documents, pleadings
and notices which are filed, served or submitted in any
of the aforementioned. No indemnified Party shall enter
into any settlement without the prior written consent of
the Company, which consent shall not be unreasonable
withheld.
<P>
6. This Agreement shall be binding upon the Company
and the Consultant and their successors and assigns.
<P>
7. If any provision or provisions of this Agreement
shall be held to be invalid, illegal or unenforceable for
any reason whatsoever, (i) the validity, legality and
enforceability of the remaining provisions of this
Agreement (including, without limitation, each portion of
any Section of this Agreement containing any such
provision held to be invalid, illegal or unenforceable)
shall not in any way be affected or impaired thereby; and
(ii) to the fullest extent possible, the provisions of
this Agreement (including, without limitation, each
portion of any Section of this Agreement containing any
such provision held to be invalid, illegal or
unenforceable) shall be construed so as to give effect to
the intent manifested by the provision held, invalid
illegal or unenforceable.
<P>
8. No supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by
both parties hereto. No waiver of any other provisions
hereof (whether or no similar) shall be binding unless
executed in writing by both parties hereto nor shall such
waiver constitute a continuing waiver.
<P>
9. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be
deemed to be an original but all of which shall
constitute one and the same Agreement.
10. The Parties agree that should any dispute arise
in the administration of this Agreement, that the
agreement shall be governed and construed by the Laws of
the State of New Jersey.
<P>
11. This Agreement contains the entire agreement
between the Parties with respect to the consulting
services to be provided to the Company by the Consultant
and supersedes any and all prior understandings,
agreement or correspondence between the Parties.
<P>
IN WITNESS WHEREOF, the Company and the Consultant have
caused this Agreement to be signed by duly authorized
representatives as of the day and year first above
written.
<P>
THE AUXER GROUP, INC.
<P>
/s/ Eugene Chiaramonte, Jr.
- ----------------------------
President
<P>
/s/ Richard I. Anslow
- ----------------------------
Richard I. Anslow (Consultant)
<P>
EXHIBIT 4.4
<P>
CONSULTING AGREEMENT
<P>
This Agreement is made as of this May 23, 2000, by and
between The Auxer Group, Inc., ("the Company") a
corporation duly organized and existing under the laws of
New Jersey, with offices at 12 Andrews Drive, West
Paterson, New Jersey 07424 and ("the Consultant") Patrick
Rost, 1042 N. El Camino Road, S-B266, Encinitas, CA
92024.
<P>
WHEREAS, the Company is engaged in the business of
acquiring and investing in businesses with high growth
potential,
<P>
WHEREAS, the Consultant provides management and business
strategy consulting services,
<P>
WHEREAS, the Company wishes to retain the services of the
Consultant on the following terms and conditions:
<P>
1. The Company hereby retains the services of the
Consultants for a period of two (2) months and
terminating on May 23, 2002. In exchange for the
Consulting Services (as that term is defined herein), the
Consultant shall receive 1,000,000 shares of the Auxer
Group common stock registered under S-8 filing. As
additional consideration, The Auxer Group hereby issues a
warrant to purchase 2,500,000 shares of common stock
registered under an S-8 filing at a price of $0.04 per
share.
<P>
2. The Consultant shall, employing its best efforts,
assist the Company by: providing management and business
strategy consulting services.
<P>
3. The Consultant shall be independent contractors
and shall have no right or authority to assume or create
any obligations or responsibility, express or implied, on
behalf of or in the name of the Company, unless
specifically authorized in writing by the Company. No
provision of this Agreement shall be construed to
preclude consultants from pursuing other consulting or
design and development projects.
<P>
4. The Consultant (including any person or entity
acting for or on behalf of the Consultant) shall not be
liable for any mistakes of fact, errors of judgment, for
losses sustained by the Company or any subsidiary or for
any acts or omissions of any kind, unless caused by the
negligence or intentional misconduct of the Consultant or
any person or entity acting for or on behalf of the
Consultant.
<P>
5. The Company and its present and future
subsidiaries jointly and severally, agree to indemnify
and hold harmless the Consultant against any loss, claim,
damage or liability whatsoever, (including reasonable
attorneys' fees and expenses), to which such Indemnified
Party may become subject as a result of performing any
act (or omitting to perform any act) contemplated to be
performed by the Consultant pursuant to this Agreement if
such act or omission did not violate the provisions of
Section 4 of this Agreement. So long as the Company has
not provided counsel to the Indemnified Party in
accordance with the terms of this Agreement, the Company
and its subsidiaries agree to reimburse the defense of
any action or investigation (including reasonable
attorney's fees and expenses), subject to any
understanding from such Indemnified Party to repay the
Company or its subsidiaries if it is ultimately
determined that such Indemnified Party is not entitled to
such indemnity. In case any action, suit or proceeding
shall be brought or threatened, in writing, against any
Indemnified Party, it shall notify the Company within
twenty (20) days after the Indemnified Party receives
notice of such action, suit or such threat. The Company
shall have the right to appoint the Company's counsel to
defend such action, suit or proceeding, provided that
such Indemnified Party consents to such representation by
such counsel, which consent shall not be unreasonably
withheld. In the event any counsel appointed by the
Company shall not be acceptable to such Indemnified
Party, then the Company shall have the right to appoint
alternative counsel for such Indemnified Party reasonably
acceptable to such Indemnified Party, until such time as
acceptable counsel can be appointed. In any event, the
Company shall, at its sole cost and expense, be entitled
to appoint counsel to appear and participate as
co-counsel in the defense thereof. The Indemnified
Party, or its co-counsel, shall promptly supply the
Company's counsel with copies of all documents, pleadings
and notices which are filed, served or submitted in any
of the aforementioned. No indemnified Party shall enter
into any settlement without the prior written consent of
the Company, which consent shall not be unreasonable
withheld.
<P>
6. This Agreement shall be binding upon the Company
and the Consultant and their successors and assigns.
<P>
7. If any provision or provisions of this Agreement
shall be held to be invalid, illegal or unenforceable for
any reason whatsoever, (i) the validity, legality and
enforceability of the remaining provisions of this
Agreement (including, without limitation, each portion of
any Section of this Agreement containing any such
provision held to be invalid, illegal or unenforceable)
shall not in any way be affected or impaired thereby; and
(ii) to the fullest extent possible, the provisions of
this Agreement (including, without limitation, each
portion of any Section of this Agreement containing any
such provision held to be invalid, illegal or
unenforceable) shall be construed so as to give effect to
the intent manifested by the provision held, invalid
illegal or unenforceable.
<P>
8. No supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by
both parties hereto. No waiver of any other provisions
hereof (whether or not similar) shall be binding unless
executed in writing by both parties hereto nor shall such
waiver constitute a continuing waiver.
<P>
9. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be
deemed to be an original but all of which shall
constitute one and the same Agreement.
<P>
10. The Parties agree that should any dispute arise
in the administration of this Agreement, that the
agreement shall be governed and construed by the Laws of
the State of New Jersey.
<P>
11. This Agreement contains the entire agreement
between the Parties with respect to the consulting
services to be provided to the Company by the Consultant
and supersedes any and all prior understandings,
agreement or correspondence between the Parties.
<P>
IN WITNESS WHEREOF, the Company and the Consultant have
caused this Agreement to be signed by duly authorized
representatives as of the day and year first above
written.
<P>
THE AUXER GROUP, INC.
<P>
s/s Eugene Chiaramonte, Jr.
- -------------------------------
President
<P>
s/s Patrick Rost
- -------------------------------
Patrick Rost (Consultant)
<P>
EXHIBIT 4.5
<P>
CONSULTING AGREEMENT
<P>
This Agreement is made as of this May 1, 2000 by and
between The Auxer Group, Inc., ("the Company") a
corporation duly organized and existing under the laws of
New Jersey, with offices at 12 Andrews Drive, West
Paterson, New Jersey 07424 and Eugene Ciarelli, ("the
Consultant") 61 Ottowa Avenue, Hasbrouck Heights, NJ
07424.
<P>
WHEREAS, the Company is engaged in the business of
acquiring and investing in business,
<P>
WHEREAS, the Consultant provides accounting and financial
services,
<P>
WHEREAS, the Company wishes to retain the services of the
Consultants on the following terms and conditions:
<P>
1. The Company hereby retains the services of the
Consultant for a period of one (1) year(s) and
terminating on May 1, 2001. In exchange for the
Consulting Services, the Consultants shall receive cash
of $5200 and 100,000 shares of common stock in The Auxer
Group, Inc.
<P>
2. The Consultant shall, employing their best
efforts, assist the Company by: providing accounting and
financial services,
<P>
3. The Consultant shall be independent contractors
and shall have no right or authority to assume or create
any obligations or responsibility, express or implied, on
behalf of or in the name of the Company, unless
specifically authorized in writing by the Company. No
provision of this Agreement shall be construed to
preclude consultants from pursuing other consulting or
design and development projects.
<P>
4. The Consultant (including any person or entity
acting for or on behalf of the Consultant) shall not be
liable for any mistakes of fact, errors of judgment, for
losses sustained by the company or any subsidiary or for
any acts or omissions of any kind, unless caused by the
negligence or intentional misconduct of the Consultants
or any person or entity acting for or on behalf of the
Consultants.
<P>
5. The Company and its present and future
subsidiaries jointly and severally, agree to indemnify
and hold harmless the Consultant against any loss,
claim, damage or liability whatsoever, (including
reasonable attorneys' fees and expenses), to which such
Indemnified Party may become subject as a result of
performing any act (or omitting to perform any act)
contemplated to be performed by the Consultants pursuant
to this Agreement if such act or omission did not violate
the provisions of Section 4 of this Agreement. So long
as the Company has not provided counsel to the
Indemnified Party in accordance with the terms of this
Agreement, the Company and its subsidiaries agree to
reimburse the defense of any action or investigation
(including reasonable attorney's fees and expenses),
subject to any understanding from such Indemnified Party
to repay the Company or its subsidiaries if it is
ultimately determined that such Indemnified Party is not
entitled to such indemnity. In case any action, suit or
proceeding shall be brought or threatened, in writing,
against any Indemnified Party, it shall notify the
Company within twenty (20) days after the Indemnified
Party receives notice of such action, suit or such
threat. The Company shall have the right to appoint the
Company's counsel to defend such action, suit or
proceeding, provided that such Indemnified Party consents
to such representation by such counsel, which consent
shall not be unreasonably withheld. In the event any
counsel appointed by the Company shall not be acceptable
to such Indemnified Party, then the Company shall have
the right to appoint alternative counsel for such
Indemnified Party reasonably acceptable to such
Indemnified Party, until such time as acceptable counsel
can be appointed. In any event, the Company shall, at
its sole cost and expense, be entitled to appoint counsel
to appear and participate as co-counsel in the defense
thereof. The Indemnified Party, or its co-counsel, shall
promptly supply the Company's counsel with copies of all
documents, pleadings and notices which are filed, served
or submitted in any of the aforementioned. No
indemnified Party shall enter into any settlement without
the prior written consent of the Company, which consent
shall not be unreasonable withheld.
<P>
6. This Agreement shall be binding upon the Company
and the Consultant and their successors and assigns.
<P>
7. If any provision or provisions of this Agreement
shall be held to be invalid, illegal or unenforceable for
any reason whatsoever, (i) the validity, legality and
enforceability of the remaining provisions of this
Agreement (including, without limitation, each portion of
any Section of this Agreement containing any such
provision held to be invalid, illegal or unenforceable)
shall not in any way be affected or impaired thereby; and
(ii) to the fullest extent possible, the provisions of
this Agreement (including, without limitation, each
portion of any Section of this Agreement containing any
such provision held to be invalid, illegal or
unenforceable) shall be construed so as to give effect to
the intent manifested by the provision held, invalid
illegal or unenforceable.
<P>
8. No supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by
both parties hereto. No waiver of any other provisions
hereof (whether or no similar) shall be binding unless
executed in writing by both parties hereto nor shall such
waiver constitute a continuing waiver.
<P>
9. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be
deemed to be an original but all of which shall
constitute one and the same Agreement.
<P>
10. The Parties agree that should any dispute arise
in the administration of this Agreement, that the
agreement shall be governed and construed by the Laws of
the State of New Jersey.
<P>
11. This Agreement contains the entire agreement
between the Parties with respect to the consulting
services to be provided to the Company by the Consultants
and supersedes any and all prior understandings,
agreement or correspondence between the Parties.
<P>
IN WITNESS WHEREOF, the Company and the Consultant have
caused this Agreement to be signed by duly authorized
representatives as of the day and year first above
written.
<P>
THE AUXER GROUP, INC.
<P>
/s/ Euguene Chiaramonte
- ------------------------------
Eugene Chiaramonte, Jr.
President
<P>
/s/ Eugene Ciarelli
- ------------------------------
Eugene Ciarelli
<P>
EXHIBIT 4.6
<P>
CONSULTING AGREEMENT
<P>
This Agreement is made as of this May 1, 2000 by and
between the Harvey Westbury Corp, a subsidiary of The
Auxer Group, Inc., ("the Company") a corporation duly
organized and existing under the laws of New Jersey, with
offices at 12 Andrews Drive, West Paterson, New Jersey
07424 and Jim Morisco, ("the Consultant") 28 Midway
Avenue, Locust Valley, NY 11560.
<P>
WHEREAS, the Company is engaged in the business of
acquiring and investing in business,
<P>
WHEREAS, the Consultant provides operations and
warehousing expertise,
<P>
WHEREAS, the Company wishes to retain the services of the
Consultants on the following terms and conditions:
<P>
1. The Company hereby retains the services of the
Consultant for a period of one (1) year(s) and
terminating on May 1, 2001. In exchange for the
Consulting Services, the Consultants shall receive cash
of $52,000 and 100,000 shares of common stock in The
Auxer Group, Inc.
<P>
2. The Consultant shall, employing their best
efforts, assist the Company by: providing accounting and
financial services,
<P>
3. The Consultant shall be independent contractors
and shall have no right or authority to assume or create
any obligations or responsibility, express or implied, on
behalf of or in the name of the Company, unless
specifically authorized in writing by the Company. No
provision of this Agreement shall be construed to
preclude consultants from pursuing other consulting or
design and development projects.
<P>
4. The Consultant (including any person or entity
acting for or on behalf of the Consultants) shall not be
liable for any mistakes of fact, errors of judgment, for
losses sustained by the company or any subsidiary or for
any acts or omissions of any kind, unless caused by the
negligence or intentional misconduct of the Consultants
or any person or entity acting for or on behalf of the
Consultants.
<P>
5. The Company and its present and future
subsidiaries jointly and severally, agree to indemnify
and hold harmless the Consultant against any loss,
claim, damage or liability whatsoever, (including
reasonable attorneys' fees and expenses), to which such
Indemnified Party may become subject as a result of
performing any act (or omitting to perform any act)
contemplated to be performed by the Consultants pursuant
to this Agreement if such act or omission did not violate
the provisions of Section 4 of this Agreement. So long
as the Company has not provided counsel to the
Indemnified Party in accordance with the terms of this
Agreement, the Company and its subsidiaries agree to
reimburse the defense of any action or investigation
(including reasonable attorney's fees and expenses),
subject to any understanding from such Indemnified Party
to repay the Company or its subsidiaries if it is
ultimately determined that such Indemnified Party is not
entitled to such indemnity. In case any action, suit or
proceeding shall be brought or threatened, in writing,
against any Indemnified Party, it shall notify the
Company within twenty (20) days after the Indemnified
Party receives notice of such action, suit or such
threat. The Company shall have the right to appoint the
Company's counsel to defend such action, suit or
proceeding, provided that such Indemnified Party consents
to such representation by such counsel, which consent
shall not be unreasonably withheld. In the event any
counsel appointed by the Company shall not be acceptable
to such Indemnified Party, then the Company shall have
the right to appoint alternative counsel for such
Indemnified Party reasonably acceptable to such
Indemnified Party, until such time as acceptable counsel
can be appointed. In any event, the Company shall, at
its sole cost and expense, be entitled to appoint counsel
to appear and participate as co-counsel in the defense
thereof. The Indemnified Party, or its co-counsel, shall
promptly supply the Company's counsel with copies of all
documents, pleadings and notices which are filed, served
or submitted in any of the aforementioned. No
indemnified Party shall enter into any settlement without
the prior written consent of the Company, which consent
shall not be unreasonable withheld.
<P>
6. This Agreement shall be binding upon the Company
and the Consultant and their successors and assigns.
<P>
7. If any provision or provisions of this Agreement
shall be held to be invalid, illegal or unenforceable for
any reason whatsoever, (i) the validity, legality and
enforceability of the remaining provisions of this
Agreement (including, without limitation, each portion of
any Section of this Agreement containing any such
provision held to be invalid, illegal or unenforceable)
shall not in any way be affected or impaired thereby; and
(ii) to the fullest extent possible, the provisions of
this Agreement (including, without limitation, each
portion of any Section of this Agreement containing any
such provision held to be invalid, illegal or
unenforceable) shall be construed so as to give effect to
the intent manifested by the provision held, invalid
illegal or unenforceable.
<P>
8. No supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by
both parties hereto. No waiver of any other provisions
hereof (whether or no similar) shall be binding unless
executed in writing by both parties hereto nor shall such
waiver constitute a continuing waiver.
<P>
9. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be
deemed to be an original but all of which shall
constitute one and the same Agreement.
<P>
10. The Parties agree that should any dispute arise
in the administration of this Agreement, that the
agreement shall be governed and construed by the Laws of
the State of New Jersey.
<P>
11. This Agreement contains the entire agreement
between the Parties with respect to the consulting
services to be provided to the Company by the Consultants
and supersedes any and all prior understandings,
agreement or correspondence between the Parties.
<P>
IN WITNESS WHEREOF, the Company and the Consultant have
caused this Agreement to be signed by duly authorized
representatives as of the day and year first above
written.
<P>
HARVEY WESTBURY CORP.
<P>
/s/ Ronald Shaver
- ------------------------
Ronald Shaver
Acting President
<P>
THE AUXER GROUP, INC.
<P>
/s/ Eugene Chiaramonte, Jr.
- ----------------------------
Eugene Chiaramonte, Jr.
President
<P>
/s/ Jim Morisco
- ----------------------------
Jim Morisco
<P>
EXHIBIT 4.7
<P>
EMPLOYMENT AGREEMENT
BETWEEN
THE AUXER GROUP, INC.
AND
EUGENE CHIARAMONTE, JR.
<P>
AGREEMENT dated this May 1, 2000, between the Company, THE
AUXER GROUP, INC., a Delaware corporation (hereinafter the
"Company") which has its principal place of business at 12
Andrews Drive, West Paterson, NJ 07424, and Eugene
Chiaramonte, Jr. (hereinafter the "Employee").
<P>
WHEREAS, the Company desires to acquire the services of
Employee because of his special knowledge and skills; and,
<P>
NOW, THEREFORE, in consideration of the foregoing, the
following is agreed:
<P>
1. DUTIES
<P>
The Company hereby employs Mr. Chiaramonte, Jr. as the
President of The Auxer Group, Inc. which has been conveyed
this day to the Company, having powers and duties in that
capacity as set for the from time to time by the President
of the Company. Employee shall devote his full time and
best efforts to the Business of the Company.
<P>
2. COMPENSATION
<P>
As compensation for his services to the Company, in whatever
capacity rendered, the Company shall pay to Employee once
every two weeks the sum of $2,500 as gross salary. This
salary shall be paid over the term of this Agreement which
is one (1) year(s). This Agreement shall be renewed for an
additional year or remain in effect after the term of this
agreement provided that all material terms of this Agreement
are performed by Employee and provided that both mutually
agree.
<P>
In addition, Employee shall be entitled to options under the
company's Non-Statutory Option Plan. The Employee shall be
granted the option to purchase an aggregate of 200,000
shares of The Auxer Group, Inc. common stock, $0.001 par
value per share, at an exercise price of $0.05. Upon signing
this agreement, the Company will file the appropriate
registration statement and upon filing registration
statement, Employee may exercise these options at any time
within the plan's limitations.
<P>
3. EXPENSES
<P>
The Employee may incur reasonable expenses including expense
for travel, entertainment and similar items. All expenses
must be pre-approved. The Company will reimburse the
Employee for all such expenses upon the presentation by the
Employee, from time to time, of an itemized account
justifying such expenditures. Such reimbursement shall be
provided within 30 working days of such presentation by
Employee. If the Company determines, in its sole
discretion, that this method allowing expenses is not in the
best interest of the Company, the Company may impose such
other method, if any, for allowing such expense, including
elimination of the same.
<P>
4. TERMINATION
<P>
This Agreement may be immediately terminated in any one of
the following manners:
<P>
1. The death of Employee;
<P>
2. The failure of the company, as evidenced by filing
under the Bankruptcy Act for liquidation, or the making of
an assignment for the benefit of creditors;
<P>
3. A material breach of this Agreement executed between
the Company and the Employee; or
<P>
4. The Employer may immediately terminate for Just
Cause. For purposes of this Agreement "Just Cause" shall mean
only the following: (i) a final non-appeal able
conviction of or a plea of guilty or nolo contendere by the
Employee to a felony or misdemeanor involving fraud,
embezzlement, theft, dishonesty, or other criminal conduct
against the Company; (ii) habitual neglect of the Employee's
duties or failure by the Employee to perform or observe any
substantial lawful obligation of such employment that is not
immediately remedied, or (iii) failure of the Employee to
comply with the policies and procedures of the Company. In
the event of termination of this Agreement other than for
death, the Employee hereby agrees to resign from all
positions held in the Company, including, without
limitation, any positions as a director, officer, agent,
trustee or consultant of the Company or any affiliate of the
Company.
<P>
5. NONCOMPETITION, TRADE SECRETS, ETC.
<P>
During the term of this Agreement and at all times
thereafter, Employee shall not use for his personal benefit,
or disclose, communicate or divulge to, or use for the
direct or indirect benefit of any person, firm, association
or company other the Company, any material or information
regarding the business methods, business policies, billing
and collection policies and procedures, techniques, research
or development projects or results, trade secrets, or other
knowledge or processes under or developed by the Company or
any names and addresses of customers, or any data on or
relating to past, present, or prospective customers or any
other confidential information relating to or dealing with
the business activities of the Company, made known to
Employee or learned or acquired by Employee while in the
employ of the Company.
<P>
Any and all writing, inventions, improvements, processes,
procedures and/or techniques which Employee may make,
conceive, discover or develop, either solely or jointly with
any other person or persons, at any time during the term of
this Agreement, whether during working hours or at any other
time and at the request or upon the suggestion of the
Company which relate to or are useful in connection with any
business now or hereafter carried on or contemplated by the
Company, including developments or expansions of its present
fields of operations, shall be the sole and exclusive
property of the Company. Employee shall make full
disclosure to the Company of all such writings, inventions,
improvements, processes, procedures and techniques, and
shall do everything necessary or desirable to vest the
absolute title thereto in the Company. Employee shall write
and prepare all specifications and procedures regarding such
inventions, improvements, processes, procedures and
techniques and otherwise aid and assist the Company so that
the Company can prepare and present applications for
copyright or Letters Patent wherever possible, as well as
reissues, renewals, and extensions thereof, and can obtain
the record title to such copyright or patents so that the
Company shall be the sole and absolute owner thereof in all
countries in which it may desire to have copyright or patent
protection. Employee shall not be entitled to any
additional or special compensation or reimbursement
regarding any and all such writings, inventions,
improvements, processes, procedures and techniques.
<P>
6. APPLICABLE LAW
<P>
This Agreement shall be governed by the laws of the State of
New Jersey and shall be enforceable only in the Superior
Court of New Jersey for Bergen County. If any provision of
this Agreement is declared void, such provision shall be
deemed severed from this Agreement, which shall otherwise
remain in full force and effect.
<P>
7. BINDING EFFECT
<P>
This Agreement shall have binding effect upon the parties
hereto, when approved by the Board, and upon their
respective personal representatives, legal representatives,
successors and assigns. Any waiver of any breach of this
Agreement shall be made in writing and shall be applicable
only to such breach and shall not be construed to waive any
subsequent or prior breach other than the specific breach so
waived.
<P>
8. SUPERSEDES EARLIER AGREEMENTS
<P>
This Agreement supersedes all earlier agreements between the
Employee and the Company with respect to Employee's
employment by the Company.
<P>
IN WITNESS WHEREOF, the parties have executed this Agreement
the date first written above.
<P>
/s/ Eugene Chiaramonte, Jr. /s/ Eugene Chiaramonte, Jr.
President
The Auxer Group, Inc.
<P>
EXHIBIT 4.8
<P>
CONSULTING AGREEMENT
<P>
This Agreement is made as of this May 20, 2000 by and
between The Auxer Group, Inc., ("the Company") a
corporation duly organized and existing under the laws of
New Jersey, with offices at 12 Andrews Drive, West
Paterson, New Jersey 07424 and ("the Consultant") Mark
Neuhaus, 50 West Liberty Street, Suite 880, Reno, Nevada
89501.
<P>
WHEREAS, the Company is engaged in the business of
acquiring and investing in businesses with high growth
potential,
<P>
WHEREAS, the Consultant provides automotive marketing and
promotion consulting services,
<P>
WHEREAS, the Company wishes to retain the services of the
Consultants on the following terms and conditions:
<P>
1. The Company hereby retains the services of the
Consultant for a period of two(2) year(s) and terminating
on May 20, 2002. In exchange for the Consulting Services
(as that term is defined hereoin), The Auxer Group shall
issue a warrant to purchase 4,615,385 shares of common
stock registered under S-8 filing at a price of $0.0325
per share.
<P>
2. The Consultant shall, employing its best efforts,
assist the Company by: providing automotive product
marketing and promotion consulting services.
<P>
3. The Consultant shall be independent contractors
and shall have no right or authority to assume or create
any obligations or responsibility, express or implied, on
behalf of or in the name of the Company, unless
specifically authorized in writing by the Company. No
provision of this Agreement shall be construed to
preclude consultants from pursuing other consulting or
design and development projects.
<P>
4. The Consultant (including any person or entity
acting for or on behalf of the Consultant) shall not be
liable for any mistakes of fact, errors of judgment, for
losses sustained by the Company or any subsidiary or for
any acts or omissions of any kind, unless caused by the
negligence or intentional misconduct of the Consultant or
any person or entity acting for or on behalf of the
Consultant.
<P>
5. The Company and its present and future
subsidiaries jointly and severally, agree to indemnify
and hold harmless the Consultant against any loss, claim,
damage or liability whatsoever, (including reasonable
attorneys' fees and expenses), to which such Indemnified
Party may become subject as a result of performing any
act (or omitting to perform any act) contemplated to be
performed by the Consultant pursuant to this Agreement if
such act or omission did not violate the provisions of
Section 4 of this Agreement. So long as the Company has
not provided counsel to the Indemnified Party in
accordance with the terms of this Agreement, the Company
and its subsidiaries agree to reimburse the defense of
any action or investigation (including reasonable
attorney's fees and expenses), subject to any
understanding from such Indemnified Party to repay the
Company or its subsidiaries if it is ultimately
determined that such Indemnified Party is not entitled to
such indemnity. In case any action, suit or proceeding
shall be brought or threatened, in writing, against any
Indemnified Party, it shall notify the Company within
twenty (20) days after the Indemnified Party receives
notice of such action, suit or such threat. The Company
shall have the right to appoint the Company's counsel to
defend such action, suit or proceeding, provided that
such Indemnified Party consents to such representation by
such counsel, which consent shall not be unreasonably
withheld. In the event any counsel appointed by the
Company shall not be acceptable to such Indemnified
Party, then the Company shall have the right to appoint
alternative counsel for such Indemnified Party reasonably
acceptable to such Indemnified Party, until such time as
acceptable counsel can be appointed. In any event, the
Company shall, at its sole cost and expense, be entitled
to appoint counsel to appear and participate as
co-counsel in the defense thereof. The Indemnified
Party, or its co-counsel, shall promptly supply the
Company's counsel with copies of all documents, pleadings
and notices which are filed, served or submitted in any
of the aforementioned. No indemnified Party shall enter
into any settlement without the prior written consent of
the Company, which consent shall not be unreasonable
withheld.
<P>
6. This Agreement shall be binding upon the Company
and the Consultant and their successors and assigns.
<P>
7. If any provision or provisions of this Agreement
shall be held to be invalid, illegal or unenforceable for
any reason whatsoever, (i) the validity, legality and
enforceability of the remaining provisions of this
Agreement (including, without limitation, each portion of
any Section of this Agreement containing any such
provision held to be invalid, illegal or unenforceable)
shall not in any way be affected or impaired thereby; and
(ii) to the fullest extent possible, the provisions of
this Agreement (including, without limitation, each
portion of any Section of this Agreement containing any
such provision held to be invalid, illegal or
unenforceable) shall be construed so as to give effect to
the intent manifested by the provision held, invalid
illegal or unenforceable.
<P>
8. No supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by
both parties hereto. No waiver of any other provisions
hereof (whether or not similar) shall be binding unless
executed in writing by both parties hereto nor shall such
waiver constitute a continuing waiver.
<P>
9. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be
deemed to be an original but all of which shall
constitute one and the same Agreement.
<P>
10. The Parties agree that should any dispute arise
in the administration of this Agreement, that the
agreement shall be governed and construed by the Laws of
the State of New Jersey.
<P>
11. This Agreement contains the entire agreement
between the Parties with respect to the consulting
services to be provided to the Company by the Consultant
and supersedes any and all prior understandings,
agreement or correspondence between the Parties.
<P>
IN WITNESS WHEREOF, the Company and the Consultant have
caused this Agreement to be signed by duly authorized
representatives as of the day and year first above
written.
<P>
THE AUXER GROUP, INC.
<P>
s/s Eugene Chiaramonte, Jr.
- -----------------------------
President
<P>
s/s Mark Neuhaus
- -----------------------------
Mark Neuhaus (Consultant)
<P>
EXHIBIT 5.1
<P>
RICHARD I. ANSLOW & ASSOCIATES
4400 ROUTE 9 SOUTH, 2ND FLOOR
FREEHOLD, NEW JERSEY 07728
Telephone (732) 409-1212
Facsimile (732) 577-1188
<P>
May 25, 2000
<P>
Combined Opinion and Consent
<P>
The Auxer Group, Inc.
12 Andrews Drive
West Patterson, New Jersey 07424
<P>
Re: The Auxer Group, Inc.
<P>
Gentlemen:
<P>
We have acted as counsel to The Auxer Group, Inc., a
Delaware corporation (the "Company"), in connection with
the preparation and filing with the Securities and
Exchange Commission (the "Commission") under the
Securities Act of 1933 as amended (the "Act") of the
Company's Registration Statement on Form S-8, filed
contemporaneously with the Commission relating to the
registration under the Act of 11,765,385 shares (the
"Shares") of the Company's Common Stock, $0.001 par value
(the "Common Stock").
<P>
In rendering this opinion, we have reviewed the
Registration Statement on Form S-8, as well as a copy of
the Certificate of Incorporation of the Company, as
amended, and the By-Laws of the Company. We have also
reviewed such statutes and judicial precedents as we have
deemed relevant and necessary as a basis for the opinion
hereinafter expressed. In our examination, we have
assumed the genuineness of all signatures, the legal
capacity of natural persons, the authenticity of all
documents submitted to us as originals, the conformity
with, the original documents of all documents submitted
to us as certified or photostatic copies, and the
authenticity of the originals of such copies.
<P>
Based on the foregoing and in reliance thereon, and
subject to the qualifications and limitations set forth
herein, we are of the opinion that:
<P>
(1) The Company has been duly incorporated and is a
validly existing corporation under the laws of the State
of Delaware;
<P>
(2) The Shares, when issued in connection with the
agreements (copies annexed to the Registration
Statement), will be legally issued, fully paid and non-assessable.
<P>
This opinion is limited to the General Corporation Law
and the Constitution of the State of Delaware and we
express no opinion with respect to the laws of any other
jurisdiction. We consent to your filing this opinion with
the Securities and Exchange Commission as an exhibit to
the Registration Statement on Form S-8. This opinion is
not to be used, circulated, quoted or otherwise referred
to for any other purpose without our prior written
consent.
<P>
Very truly yours,
<P>
RICHARD I. ANSLOW & ASSOCIATES
<P>
By: /s/ Richard I. Anslow
- ------------------------------
Richard I. Anslow
<P>
RIA/tp
<P>
EXHIBIT 23.1
<P>
CONSENT OF INDEPENDENT AUDITORS
<P>
The Auxer Group, Inc., West Patterson, New Jersey
<P>
We have issued our report dated March 23,2000, relating
to the financial statements of The Auxer Group, Inc. for
the years ended December 31, 1999 and December 31, 1998
appearing in the Company's Form 10-SB. Such report has
been incorporated by reference in this Registration
Statement. We consent to the incorporation by reference
in this Registration Statement on Form S-8 of the
aforementioned reports and to the use of our name as it
appears under the caption "Experts."
<P>
Edelman & Kalosieh, Certified Public Accountants, P.A.
<P>
By: /s/ Edelman & Kalosieh, CPAs, P.A.
- ----------------------------------------
Edelman & Kalosieh, CPAs, P.A.
<P>
Fair Lawn, New Jersey
May 23, 2000
<P>
