EXHIBIT 4.3
ADVISORY AND INVESTMENT BANKING AGREEMENT
This Agreement is made and entered into as of the [__]th day
of [____], 2000 by and between Xxxxxxxx Capital Partners, L.P., a New York
Limited Partnership ("Xxxxxxxx") and Go2Pharmacy, Inc., a Florida corporation
(the "Company").
In consideration of the mutual promises made herein and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
1. PURPOSE: The Company hereby engages Xxxxxxxx for the term
specified in Paragraph 2 hereof to render consulting advice to the Company as an
investment banker relating to financial and similar matters upon the terms and
conditions set forth herein.
2. TERM: Except as otherwise specified in paragraph 4 hereof,
this Agreement shall be effective from [THE EFFECTIVE DATE] to [36 months
thereafter].
3. DUTIES OF XXXXXXXX: During the term of this Agreement,
Xxxxxxxx shall seek out Transactions (as hereinafter defined) on behalf of the
Company and shall furnish advice to the Company in connection with any such
Transactions.
4. COMPENSATION: In consideration for the services rendered by
Xxxxxxxx to the Company pursuant to this Agreement (and in addition to the
expenses provided for in Paragraph 5 hereof), the Company shall compensate
Xxxxxxxx as follows:
(a) The Company shall pay Xxxxxxxx a fee of $4,027.77
per month during the term of this Agreement. The sum of $145,000 shall be
payable in full on the date of this Agreement.
(b) In the event that any Transaction (as hereinafter
defined) occurs during the term of this Agreement or one year thereafter, the
Company shall pay fees to Xxxxxxxx as follows:
(i) five percent (5%) of any consideration up to and including
$1,000,000 paid pursuant to the Transaction, plus
(ii) four percent (4%) of any consideration from $1,000,001 up to
and including $2,000,000 paid pursuant to the Transaction,
plus
(iii) three percent (3%) of any consideration from $2,000,001 up to
and including $3,000,000 paid pursuant to the Transaction,
plus
(iv) two percent (2%) of any consideration from $3,000,001 up to
and including $4,000,000 paid pursuant to the Transaction,
plus
(v) one percent (1%) of any consideration greater than $4,000,000
paid pursuant to the Transaction.
For the purposes of this Agreement, "Consideration"
shall mean the total market value on the day of the closing of stock, cash,
assets and all other property (real or personal) exchanged or received, directly
or indirectly by the Company or any of its security holders in connection with
any Transaction. Any co-broker or brokers retained by Xxxxxxxx shall be paid by
Xxxxxxxx.
For the purposes of the Agreement, a "Transaction"
shall mean (a) any transaction originated by Xxxxxxxx, whereby, directly or
indirectly, control of or a material interest in the Company or any of its
businesses or any of their respective assets, is transferred for Consideration,
or (b) any transaction originated by Xxxxxxxx whereby the Company acquires any
other company or the assets of any other company or an interest in any other
company (an "Acquisition") or to so act.
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In the event Xxxxxxxx originates a line of credit
with a lender, the Company and Xxxxxxxx will mutually agree on a satisfactory
fee for such services provided based upon reasonable and customary practice in
the industry and the terms of payment of such fee; provided, however, that in
the event the Company is introduced to a corporate partner by Xxxxxxxx in
connection with a merger, Acquisition or financing and a credit line develops
directly as a result of the introduction, the appropriate fee shall be the
amount set forth in the schedule above with consideration to be based upon the
amount of the line of credit. In the event Xxxxxxxx introduces the Company to a
joint venture partner or customer and sales develop as a result of the
introduction, the Company agrees to pay a fee of five percent (5%) of total
sales generated directly from this introduction during the first two years
following the date of the first sale, in lieu of the fees set forth in the
schedule above. Total sales shall mean cash receipts less any applicable
refunds, returns, allowances, credits and shipping charges and monies paid by
the Company by way of settlement or judgment arising out of claims made by or
threatened against the Company. Commission payments shall be paid on the 15th
day of each month following the receipt of customers' payment. In the event any
adjustments are made to the total sales after the commission has been paid, the
Company shall be entitled to an appropriate refund or credit against future
payments under this Agreement. All fees to be paid pursuant to this Agreement,
except as otherwise specified, are due and payable to Xxxxxxxx in cash at the
closing or closings of any transaction specified in Paragraph 4 hereof. In the
event that this Agreement shall not be renewed or if terminated for any reason,
notwithstanding any such non-renewal or termination, Xxxxxxxx shall be entitled
to a full fee as provided under Paragraphs 4 and 5 hereof, for any transaction
for which the discussions were initiated during the term of this Agreement and
which is consummated within a period of twelve months after non-renewal or
termination of this Agreement.
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5. EXPENSES OF XXXXXXXX: In addition to the fees payable
hereunder, and regardless of whether any transaction set forth in Paragraph 4
hereof is proposed or consummated the Company shall reimburse Xxxxxxxx for all
fees and disbursements of Utendahl's counsel and Utendahl's travel and
reasonable out-of-pocket expenses incurred in connection with and in direct
furtherance of the services performed by Xxxxxxxx pursuant to this Agreement,
including without limitation, hotels, food and associated expenses and
long-distance telephone calls. Xxxxxxxx shall obtain the consent of the Company
before incurring any expense over $1,000.
6. LIABILITY OF XXXXXXXX:
(a) The Company acknowledges that all opinions and
advice (written or oral) given by Xxxxxxxx to the Company in connection with
Utendahl's engagement are intended solely for the benefit and use of the Company
in considering the transaction to which they relate, and the Company agrees that
no person or entity other than the Company shall be entitled to make use of or
rely upon the advice of Xxxxxxxx to be given hereunder, and no such opinion or
advice shall be used for any other purpose or reproduced, disseminated, quoted
or referred to at any time, in any manner or for any purpose, nor may the
Company make any public references to Xxxxxxxx, or use Utendahl's name in any
annual reports or any other reports or releases of the Company without
Utendahl's prior written consent.
(b) The Company acknowledges that Xxxxxxxx makes no
commitment whatsoever as to making a market in the Company's securities or to
recommending or advising its clients to purchase the Company's securities,
except that Xxxxxxxx has committed to make a market in the Company's securities
for at least 45 days after the effective date of the Company's initial public
offering. Research reports or corporate finance reports that may be prepared by
Xxxxxxxx will, when and if
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prepared, be done solely on the merits or judgment of analysis of Xxxxxxxx or
any senior corporate finance personnel of Xxxxxxxx.
7. UTENDAHL'S SERVICES TO OTHERS: The Company acknowledges
that Xxxxxxxx or its affiliates are in the business of providing financial
services and consulting advice to others. Nothing herein contained shall be
construed to limit or restrict Xxxxxxxx in conducting such business with respect
to others, or in rendering such advice to others.
8. COMPANY INFORMATION:
(a) The Company recognizes and confirms that, in
advising the Company and in fulfilling its engagement hereunder, Xxxxxxxx will
use and rely on data, material and other information furnished to Xxxxxxxx by
the Company. The Company acknowledges and agrees that in performing its services
under this engagement, Xxxxxxxx may rely upon the data, material and other
information supplied by the Company without independently verifying the
accuracy, completeness or veracity of same.
(b) Except as contemplated by the terms hereof or as
required by applicable law, Xxxxxxxx shall keep confidential all material
non-public information provided to it by the Company, and shall not disclose
such information to any third party, other than such of its employees and
advisors as Xxxxxxxx determines to have a need to know. Upon termination of this
Agreement, at the request of the Company, Xxxxxxxx shall deliver to the Company
all non-public material in its possession relating to the business affairs of
the Company.
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9. INDEMNIFICATION:
(a) The Company shall indemnify and hold Xxxxxxxx and
its directors, officers, employees and agents harmless against any and all
liabilities, claims, lawsuits, including any and all awards and/or judgments to
which it may become subject under the Securities Act of 1933, as amended (the
"1933 Act"), the Securities Exchange Act of 1934, as amended (the "Act") or any
other federal or state statute, at common law or otherwise, insofar as said
liabilities, claims and lawsuits (including awards and/or judgments) arise out
of or are in connection with the services rendered by Xxxxxxxx or any
transactions in connection with this Agreement, except for any liabilities,
claims and lawsuits (including awards judgments and related costs and expenses),
arising out of acts or omissions of Xxxxxxxx. In addition, the Company shall
also indemnify and hold Xxxxxxxx harmless against any and all reasonable costs
and expenses, including reasonable counsel fees, incurred or relating to the
foregoing. If it is finally judicially determined that the Company will not be
responsible for any liabilities, claims and lawsuits or expenses related
thereto, the indemnified party, by his or its acceptance of such amounts, agrees
to repay the Company all amounts previously paid by the Company to the
indemnified person and will pay all costs of collection thereof, including but
not limited to reasonable attorneys' fees related thereto.
Xxxxxxxx shall give the Company prompt notice of any
such liability, claim or lawsuit which Xxxxxxxx contends is the subject matter
of the Company's indemnification and the Company thereupon shall be granted the
right to take any and all necessary and proper action, at its sole cost and
expense, with respect to such liability, claim and lawsuit, including the right
to settle, compromise and dispose of such liability, claim or lawsuit, excepting
therefrom any and all proceedings or hearings before any regulatory bodies
and/or authorities.
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Xxxxxxxx shall indemnify and hold the Company and its
directors, officers, employees and agents harmless against any and all
liabilities, claims and lawsuits, including any and all awards and/or judgments
to which it may become subject under the 1933 Act, the Act or any other federal
or state statute, at common law or otherwise, insofar as said liabilities,
claims and lawsuits (including awards and/or judgments) arise out of or are
based upon Utendahl's gross negligence, willful misconduct, bad faith or any
untrue statement or alleged untrue statement of a material fact or omission at a
material fact required to be stated or necessary to make the statement provided
by Xxxxxxxx, not misleading, which statement or omission was made in reliance
upon information furnished in writing to the Company by or on behalf of Xxxxxxxx
for inclusion in any registration statement or prospectus or any amendment or
supplement thereto in connection with any transaction to which this Agreement
applies. In addition, Xxxxxxxx shall also indemnify and hold the Company
harmless against any and all costs and expenses, including reasonable counsel
fees, incurred or relating to the foregoing.
The Company shall give to Xxxxxxxx prompt notice of
any such liability, claim or lawsuit which the Company contends is the subject
matter of Utendahl's indemnification and Xxxxxxxx thereupon shall be granted the
right to a take any and all necessary and proper action, at its sole cost and
expense, with respect to such liability, claim and lawsuit, including the right
to settle, compromise or dispose of such liability, claim or lawsuit, excepting
therefrom any and all proceedings or hearings before any regulatory bodies
and/or authorities.
(b) In order to provide for just and equitable
contribution under the Act in any case in which (i) any person entitled to
indemnification under this Section 9 makes claim for indemnification pursuant
hereto but it is judicially determined (by the entry of a final judgment or
decree by a court of competent jurisdiction and the expiration of time to appeal
or the denial of the last right of
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appeal) that such indemnification may not be enforced in such case
notwithstanding the fact that this Section 9 provides for indemnification in
such case, or (ii) contribution under the Act may be required on the part of any
such person in circumstances for which indemnification is provided under this
Section 9, then, and in each such case, the Company and Xxxxxxxx shall
contribute to the aggregate losses, claims, damages or liabilities to which they
may be subject (after any contribution from others) in such proportion taking
into consideration the relative benefits received by each party from the
offering covered by the prospectus with respect to any transactions in
connection with this Agreement (taking into account the portion of the proceeds
of the offering realized by each), the parties' relative knowledge and access to
information concerning the matter with respect to which the claim was assessed,
the opportunity to correct and prevent any statement or omission and other
equitable considerations appropriate under the circumstances; provided, however,
that notwithstanding the above in no event shall Xxxxxxxx be required to
contribute any amount in excess of 10% of the public offering price of any
securities to which such Prospectus applies; and provided, that, in any such
case, no person guilty of a fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation.
Within fifteen (15) days after receipt by any party
to this Agreement (or its representative) of notice of the commencement of any
action, suit or proceeding, such party will, if a claim for contribution in
respect thereof is to be made against another party (the "Contributing Party"),
notify the Contributing Party of the commencement thereof, but the omission so
to notify the Contributing Party will not relieve it from any liability which it
may have to any other party other than for contribution hereunder. In case any
such action, suit or proceeding is brought against any party, and such party
notifies a Contributing Party or his or its representative of the commencement
thereof within
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the aforesaid fifteen (15) days, the Contributing Party will be entitled to
participate therein with the notifying party and any other Contributing Party
similarly notified. Any such Contributing Party shall not be liable to any party
seeking contribution on account of any settlement of any claim, action or
proceeding effected by such party seeking contribution without the written
consent of the Contributing Party. The indemnification provisions contained in
this Section 9 are in addition to any other rights or remedies which either
party hereto may have with respect to the other or hereunder.
10. XXXXXXXX AS INDEPENDENT CONTRACTOR : Xxxxxxxx shall
perform its services hereunder as independent contractors and not as employees
of the Company or an affiliate thereof. It is expressly understood and agreed to
by the parties hereto that Xxxxxxxx shall have no authority to act for,
represent or bind the Company or any affiliate thereof in any manner, except as
may be agreed to expressly by the Company in writing from time to time.
11. MISCELLANEOUS:
(a) This Agreement between the Company and Xxxxxxxx
constitutes the entire agreement and understanding of the parties hereto, and
supersedes any and all previous agreements and understandings, whether oral or
written, between the parties with respect to the matters set forth herein.
(b) Any notice or communication permitted or required
hereunder shall be in writing and shall be deemed sufficiently given if
hand-delivered or sent (i) postage prepaid by registered mail, return receipt
requested, or (ii) by facsimile, to the respective parties as set forth below,
or to such other address as either party may notify the other in writing:
If to the Company, to: Go2Pharmacy, Inc.
0000 Xxxxx Xxxxx Xxxx
Xxxxx, XX 00000
Attn: Xx. Xxxxx X. Xxxxxxxx
with a copy to: Sichenzia, Ross & Xxxxxxxx LLP
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000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxxxxx, Esq.
If to Xxxxxxxx, to: Xxxxxxxx Capital Partners, L.P.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: XxXxx Xxxxxxx
with a copy to: Xxxxxxx, Savage & Kaplowitz, LLP
000 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxx X. Xxxxxxxxx
(c) This Agreement shall be binding upon and inure to
the benefit of each of the parties hereto and their respective successors, legal
representatives and assigns.
(d) This Agreement may be executed in any number of
counterparts, each of which together shall constitute one and the same original
document.
(e) No provision of this Agreement may be amended,
modified or waived, except in a writing signed by all of the parties hereto.
(f) This Agreement shall be construed in accordance
with and governed by the laws of the State of New York, without giving effect to
conflict of law principles. The parties hereby agree that any dispute which may
arise between them arising out of or in connection with this Agreement shall be
adjudicated before a court located in New York County, and they hereby submit to
the exclusive jurisdiction of the courts of the State of New York located in New
York County and of the federal courts in the Southern District of New York with
respect to any action or legal proceeding commenced by any party, and
irrevocably waive any objection they now or hereafter may have respecting the
venue of any such action or proceeding brought in such a court or respecting the
fact that such court is an inconvenient
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forum, relating to or arising out of this Agreement, and consent to the service
of process in any such action or legal proceeding by means of registered or
certified mail, return receipt requested, in care of the address set forth in
Paragraph 11(b) hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, as of the day and year first above written.
XXXXXXXX CAPITAL PARTNERS, L.P.
By:________________________________
GO2PHARMACY, INC.
By:________________________________
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