Unassociated Document


    
       

      Exhibit
10.28

       

      

    

    


    RETAINER
AGREEMENT

    


    CardioGenics Holdings Inc.
(OTCBB:CGNH) ("the Client") engages Wolfe Axelrod Weinberger Associates
LLC (“WAW”), as its investor relations firm for a program of financial
communications and investor relations.

    


    This
agreement is intended to memorialize the duties and responsibilities of the
parties with respect to such services and Information (as defined below)
concerning the Client.

    


    The terms
of the engagement are as follows:

    


    
      	
              1.

            	
              Base
      Retainer Fee and Other Financial
Considerations:

            


    

    


    
      	
               
      

            	
              a)

            	
              At
      the rate of $8,000 per month for the initial year of the
      agreement.

            


    

    


    
      	
               
      

            	
              b)

            	
              Additional
      Compensation — In addition to the monthly retainer, Client agrees to issue to WAW, promptly following
      the execution of this Agreement by the parties, 500,000 restricted shares of the Client’s common
      stock, which shall be subject to the rights and restrictions of Rule 144
      (the “144 Restricted Shares”). The certificate for the 144 Restricted
      Shares shall bear the Client’s standard Rule 144 restrictive legend. WAW
      acknowledges that the 144 Restricted Shares shall not be registered for
      resale by the Client and may therefore only be sold in accordance with the
      rights and restrictions of Rule
144.

            


    

    


    
      	
              2.

            	
              Other
      Fee Matters.

            


    

    


    Should
the Client require additional financing, WAW has relationships with merchant and
investment bankers, private placement professionals and other intermediaries
available to the Client for the solicitation of funds.  To the extent that Client
specifically requests WAW to assist it in procuring such additional financing,
then the terms of such retention shall be negotiated at such
time.  WAW acknowledges that Client currently has, and from
time-to-time may continue to enter
into financing arrangements with third parties without any involvement by
WAW.

    


    
      	
              3.

            	
              WAW
      Duties.

            


    

    


    In its
role as investor relations firm for the Client, WAW shall assist the Client with
the following activities:

    


    
      	
               
      

            	
              a)

            	
              Analyze
      the Client's business and industry, following which a comprehensive fact
      sheet summarizing the Client's corporate and financial profile will be
      created and/or revised for distribution to investment professionals and
      the press.  Client shall be responsible for the accuracy of the
      statement therein and shall hold WAW harmless from and against any claims
      relating thereto.  WAW shall advise and assist the Client in
      distributing the profile utilizing WAW’s relationships, including the Dow
      Jones wire service and ticker.

            


    


    
      
         


      

      
        
        

        
          

        

      

      
         


      

    

    


    
      	
               
      

            	
              b)

            	
              Counsel
      the Client in its overall activities with the financial community through
      consultation with its management.

            


    

    


    
      	
               
      

            	
              c)

            	
              Prepare/revise,
      along with management, presentation materials for meetings with the
      investment community.

            


    

    


    
      	
               
      

            	
              d)

            	
              Establish
      a mailing list of financial contacts for the benefit of Client, and
      maintain and update the list.  This mailing list shall be
      utilized by CardioGenics
      Holdings Inc. at any time during the term of WAW’s engagement but
      shall remain the sole property of WAW.  However, any shareholder
      or other names given to WAW by CardioGenics Holdings Inc.
      shall remain the sole property of the Client.  All names
      acquired by WAW in the course of its activities for the Client will be
      supplied to the Client on written request made during the engagement
      period.  WAW represents that any names or contact information
      provided to WAW by it or its agents or representatives shall not include
      any individuals that have requested not to be contacted, including,
      without limitation individuals that have been listed on any state or
      federal so called “do not call
list”.

            


    

    


    
      	
               
      

            	
              e)

            	
              WAW
      will endeavor to arrange meetings with qualified brokers, money managers,
      portfolio managers, etc. in regional financial centers such as NYC,
      Boston, Los Angeles, San Francisco, Chicago, Minneapolis and Philadelphia.
      In addition, WAW will use its best efforts to arrange to have Client
      present at appropriate investor
conferences.

            


    

    


    
      	
               
      

            	
              f)

            	
              If
      requested by the Client, arrange and host investor and shareholder
      conference calls from time-to-time as the Client may deem
      appropriate.

            


    

    


    
      	
               
      

            	
              g)

            	
              WAW
      shall directly handle all shareholder calls and inquiries on behalf of the
      Client. WAW shall provide the Client with telephone #’s and e-mail
      addresses which shareholders can use for purposes of such
      inquiries.

            


    

    


    
      	
              4.

            	
              Representations
      and Warranties of WAW.

            


    

    


    In
performing its duties hereunder, WAW represents that at all times it will
be in compliance with applicable laws,
rules and regulations, including those of applicable securities acts and the
rules and regulations promulgated there under.

    


    
      	
              5.

            	
              Term,
      Renewal and Early Termination of
Engagement.

            


    

    


    Term.
This Agreement shall commence on January
18, 2010.

    


    The
engagement of WAW to perform services hereunder shall continue for a period of
one year starting with the commencement
date and ending on the last day of the 12th month
following such date.  The engagement will be renewed every 12 months
for successive additional twelve (12) month periods (individually, each being a “Renewal Period”)
under the terms and conditions of this Agreement unless the Client provides WAW
with prior written notice of its intention to terminate the
engagement at least 30 days prior to the
expiration of the prior term.  For each
renewal period, the parties shall negotiate in good faith concerning the
appropriate annual base retainer fee. Until they reach agreement, the fee due
for the prior month shall continue as the monthly fee due to WAW for its
services.



    
      
         


      

      
        2

        
          

        

      

      
         


      

    

    


    
      	
              6.

            	
              Early
      Termination of Engagement on
Notice.

            


    

    


    The Client or WAW will have the right to cancel the
Agreement under the following conditions and resolutions:

    


    
      	
               
      

            	
              (i)

            	
              WAW
      may resign as an advisor to the Client upon notice to Client at any time
      when securities of the Client are suspended from trading by order of the
      Securities and Exchange Commission, by any exchange or market upon which
      its securities are listed or are delisted by such exchange or market, or
      if the Client fails to provide to WAW accurate and timely information
       necessary for WAW to perform
      its duties hereunder, or if a
      material breach of this Agreement by Client shall not be timely
      cured by the Client within at least ten (10)
      after receipt by Client of written notice of such
      breach.  A resignation by WAW under this paragraph shall
      terminate the obligation of Client to pay base retainer fees to WAW from
      and after the effective date of the resignation, but shall not affect the
      144 Restricted Shares or the other rights of WAW
  hereunder.

            


    

    


    
      	
               
      

            	
              (ii)

            	
              Either
      party at any time may terminate WAW’s engagement hereunder (a) upon actions by the other party that are fraudulent in nature
      or (b) for “cause”.  For the purposes of this
      Agreement “cause” shall be deemed to be a breach of any of the terms of
      this Agreement or of any representation and warranty contained herein and the failure to cure such a reasonable breach
      after notice is given, to the extent it is curable.  Upon
      such a termination the obligation of Client to pay base retainer fees to
      WAW shall terminate immediately.

            


    

    


    
      	
               
      

            	
              (iii)

            	
              Notwithstanding
      the foregoing, at any time after July 15, 2010, the Client shall have the
      right to terminate this Agreement for its convenience (i.e., without
      cause) without incurring any further liability to WAW, other than for any
      unpaid services and expenses performed or incurred by WAW as of the date
      of such termination for convenience (which shall remain payable by Client
      in accordance with the terms of this
Agreement).

            


    

    


    
      	
               
      

            	
              (iv)

            	
              Return
      of Property upon Termination of Engagement.  Upon termination of
      WAW’s services under this Agreement, WAW shall return to the Client all
      tangible personal property owned by the Client and in WAW’s possession or
      control (other than such Information and property that WAW deems in good
      faith to be necessary to retain for potential or actual litigation or
      purposes of governmental investigations), conditioned upon receipt of full
      payment by the Client of all amounts due and owing under this Retainer
      Agreement and Client’s performance of its duties and obligations
      hereunder.

            


    

    


    
      	
               
      

            	
              (v)

            	
              Survival.  The
      provisions of Sections 1, 5, 7, 8, 10 and 11 and Annex A shall survive the
      expiration or termination of this Agreement or of WAW’s engagement to
      provide services hereunder.

            


    

    


    
      	
              7.

            	
              Out-of-Pocket
      Expenses.

            


    

    


    Client
shall reimburse WAW for any and all expenses incurred and expenditures made on
behalf of the Client during the Term of this engagement.  All expenses
shall be submitted to the Client with appropriate backup.  No mark up
will be applied by WAW to any expenses incurred by WAW for the
client.  These expenses include, but are not limited to, the
following:

    


    
      	
               
      

            	
              (i)

            	
              Travel,
      telephone, photocopying, postage for releases and postage for inquiries,
      messenger service, information retrieval service, monitoring advisory
      service, all production costs for printing releases including the paper,
      envelopes, folding, insertion, and delivery to the post
      office.

            


    


    
      
         


      

      
        3

        
          

        

      

      
         


      

    

    


    Notwithstanding
the foregoing, no expenses in excess of $500.00 will be incurred by WAW without
the prior written approval of the Client.

    


    
      	
              8.

            	
              Termination
      Expenses.

            


    

    


    All
unpaid bills must be paid in full at the time of resignation or termination of
WAW’s duties as an advisor.  Resignation or termination shall not
relieve the Client of its obligation to pay all amounts accrued prior to such
termination and shall not limit WAW or Client, as the case may be, from pursuing
other remedies which may be available to it.

    


    
      	
              9.

            	
              Approval.

            


    

    


    All
stockholder communications, press releases and other materials prepared and
disseminated on the Client’s behalf by WAW will be subject to the Client’s prior
approval as to form and content.  Client shall be solely responsible
for the content, timeliness and accuracy of the information.

    


    
      	
              10.

            	
              Confidentiality:
      Use of Information.

            


    

    


    The
Client will furnish (or will use reasonable efforts to cause its counsel and
other third parties to furnish) to WAW accurate and complete information as may
be necessary or appropriate for purposes of performing services under this
Agreement (the "Information").  Client recognizes and confirms
that

    


    
      	
               
      

            	
              (i)

            	
              WAW
      assumes no responsibility for the accuracy and completeness of the
      Information (including information available from generally recognized
      public sources) and will be using and relying upon the Information (and
      information available from generally recognized public sources) without
      assuming responsibility for independent verification or independent
      evaluation of any of the assets or liabilities (contingent or otherwise),
      business, prospects or other Information of or relating to the Client or
      any third party.

            


    

    


    
      	
               
      

            	
              (ii)

            	
              WAW
      agrees to preserve the confidentiality of any information disclosed by the
      Client to WAW, except for such disclosure as may be required by court
      order, subpoena or other judicial
process.

            


    

    


    If WAW or
any of its representatives are requested or required (by oral questions,
interrogatories, requests for information or documents in legal proceedings,
subpoena, civil investigative demand or other similar process) to disclose any
of the Information or other materials in its possession, it shall provide the
Client with notice of any such request or requirement so that the Client may
seek a protective order, confidential treatment or other appropriate remedy
and/or waive compliance with the provisions of this letter
agreement.  If, in the absence of a protective order or other remedy
or the receipt of a waiver from the Client, WAW or any of its representatives
may nonetheless, upon the advice of its outside counsel, legally compelled to
disclose Information or materials to any tribunal, commission, board, exchange,
market or governmental agency or else stand liable for contempt or suffer other
censure or financial penalty, WAW or its representative may, without liability
hereunder, disclose to such requester the Information or materials which such
counsel advises it that WAW is legally required to be disclosed.

    


    
      	
              11.

            	
              Indemnification.

            


    

    


    Client
and WAW each hereby agree to the indemnification provisions set forth in Annex A
which is attached and incorporated by reference in its entirety to this
Agreement.



    
      
         


      

      
        4

        
          

        

      

      
         


      

    


    
      	
              12.

            	
              Independent
      Contractor.

            


    

    


    The
Client acknowledges that in performing its services, WAW is acting as an
independent contractor and not as a fiduciary, agent or otherwise, with duties
owing solely to the Client.  Client acknowledges that WAW has and will
have other clients that may compete with or be adverse to Client in litigation
or other matters.  Client consent thereto and agrees that WAW may
represent or continue to serve such entities during the term of this
engagement.  WAW has no authority to bind the Client or to make
representations or warranties on behalf of the Client.

    


    
      	
              13.

            	
              Legal
      Recourse.

            


    

    


    Any
dispute(s) or claim(s) with respect to this Agreement or the performance of any
obligations there under, may be brought in a court of competent jurisdiction in
the State of New York.  The Client and WAW, each, irrevocably submits
to the jurisdiction of any court of the State of New York located in the City
and County of New York and to the jurisdiction of the United States District
Court for the Southern District of New York for the purpose of any suit, action
or other proceeding arising out of or relating to this Agreement, the options,
the securities mentioned herein or WAW’s engagement hereunder.  Each
of the parties, recognizing the costs and uncertainty of trial by jury hereby
waives any right it may have to a trial by jury in respect of any claim brought
by or on behalf of either party based upon, arising out of or in connection with
this Agreement, the 144 Restricted Shares or WAW’s engagement
hereunder.

    


    
      	
              14.

            	
              Miscellaneous.

            


    

    


    This
Agreement and the Annexes hereto set forth the entire understanding of the
parties concerning its subject.  It may not be modified, terminated or
superseded and no provision may be waived orally.  Amendments,
termination, superseding agreements and waivers must be in a writing
specifically referencing this Agreement if they are to be
effective.

    


    This
Agreement will be governed by and construed in accordance with the laws of the
State of New York applicable to agreements made and to be fully performed
therein.  Any choice of law rules that might apply any other laws
shall not apply.

    


    All
rights, liabilities and obligations hereunder will be binding upon and inure to
the benefit of Client and WAW, each Indemnified Party (as defined in Annex A)
and their respective successors and permitted assigns.

    


    This is a
personal services agreement and cannot be assigned or delegated, by either
party, without the prior written consent of both parties, which consent shall
not be unreasonably withheld, delayed or conditioned.  Unauthorized
assignments shall be null and void.

    


    
      
        
          
            
              
                
                  
                    
                      	
                              WOLFE
      AXELROD WEINBERGER ASSOC. LLC

                            	 
      	
                              CARDIOGENICS
      HOLDINGS INC.

                            
	 
      	 
      	 
      
	/s/ 	 	/s/ 
	
                              Stephen
      D. Axelrod, Managing
      Member

                            	 
      	
                              Yahia
      Gawad, CEO

                            
	
                              Date:
      January 15, 2010

                            	
                                

                            	
                               Date:
      January 20,
2010

                            


                    

                  

                

              

            

          

        

      

    


    
      
         


      

      
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    ANNEX
A

    INDEMNIFICATION

    


    This
Annex is an integral part of an engagement Agreement with

    WOLFE
AXELROD WEINBERGER ASSOC. LLC (“WAW”).

    


    Each of
the Client and WAW (hereinafter, each an “Indemnifying Party”) hereby agree to
indemnify and hold harmless the other and its affiliates and respective current
and former members, directors, officers, employees, agents, principal
shareholders and controlling persons (each such person, including WAW and
Client, an "Indemnified Party") to the extent fully permitted by law from and
against any losses, claims, damages and liabilities, joint or several
(collectively, the "Damages"), to which such Indemnified Party may become
subject in connection with or otherwise relating to or arising from the
Agreement or the performance by WAW of services there under, and will reimburse
each Indemnified Party for all reasonable fees and expenses (including the
reasonable fees and expenses of counsel) (collectively, "Expenses") as incurred
in connection with investigating, preparing, pursuing or defending any
threatened or pending claim, action, proceeding or investigation (collectively,
the "Proceedings") arising therefrom, whether or not such Indemnified Party is a
formal party to such Proceeding.  However, no such Indemnifying Party
shall be liable to any such Indemnified Party to the extent that any Damages are
found in a final non-appealable judgment by a court of competent jurisdiction to
have resulted from the gross negligence or willful misconduct of the Indemnified
Party seeking indemnification hereunder.

    


    If for
any reason other than in accordance with the Agreement, the foregoing indemnity
is unavailable to an Indemnified Party or insufficient to hold an Indemnified
Party harmless, then the Indemnifying Party will contribute to the amount paid
or payable by an Indemnified Party as a result of such Damages (including all
Expenses incurred) in such proportion as is appropriate to reflect the relative
benefits to such Indemnifying Party on the one hand, and Indemnified Party on
the other hand, in connection with the matters covered by the Agreement or, if
the foregoing allocation is not permitted by applicable law, not only such
relative benefits but also the relative faults of such parties as well as any
relevant equitable considerations.

    


    Neither
Client nor WAW shall enter into any waiver, release or settlement of any
Proceeding (whether or not any other Indemnified Party is a formal party to such
Proceeding) in respect of which indemnification may be sought hereunder without
the prior written consent of the other (which consent will not be unreasonably
withheld), unless such waiver, release or settlement (i) includes an
unconditional release of each Indemnified Party from all liability arising out
of such Proceeding and (ii) does not contain any factual or legal admission by
or with respect to any Indemnified Party or any adverse statement with respect
to the character, professionalism, expertise or reputation of any Indemnified
Party or any action or inaction of any Indemnified Party.

    


    The
indemnity, reimbursement and contribution obligations hereunder will be in
addition to any liability which either the Client or WAW may have at common law
or otherwise to any Indemnified Party and will be binding upon and inure to the
benefit of any successors, assigns, heirs and personal representatives of the
Client, WAW or an Indemnified Party.  The provisions of this Annex
will survive the modification or termination of the Agreement and may not be
modified, waived, amended or superseded unless such act is memorialized in a
writing signed by the Client and by WAW and each affected Indemnified
Party.  Oral waivers, amendments, termination or superseding
agreements shall be of no effect.


    
      
         


      

      
        6