CONSULTING AGREEMENT
This
Consulting Agreement (this “Agreement”)
is
made as of March 7, 2007 by and between Equicap, Inc., a Nevada corporation
(the
“Company”)
and
Fountainhead Capital Partners Limited, an entity registered in Jersey
(“FHCP”)
(each
a “Party”
and
collectively referred to hereafter as the “Parties”).
WITNESSETH:
WHEREAS,
the Company is pursuing a number of strategic options, including but not limited
to mergers, acquisitions, exchanges and other related types of transactions
(collectively “Strategic
Options”).
WHEREAS,
to facilitate pursuing the Strategic Options, Company has used the services
of
FHCP to serve as the Company’s corporate strategic advisor on the terms and for
the services specified in this Agreement;
NOW,
THEREFORE, in consideration of the premises and the mutual covenants herein
contained and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the Parties, intending to be legally
bound, hereby agree in good faith as follows:
1. Services.
The
services which FHCP has provided under this Agreement, include the
following:
(a) FHCP
to
the extent it deems appropriate has familiarized itself with the business,
operations, financial condition and prospects of the Company;
(b) FHCP
has
identified potential targets and transactions with which the Company may pursue
Strategic Options and related transactions and has assisted in the evaluation
of
such potential transactions; and
(c) FHCP
has
assisted the Company in preparing and analyzing a broad range of other Strategic
Options.
2. Termination.
Either
Party may terminate this Agreement at anytime after the Company has completed
a
transaction that qualifies as a Strategic Option. The termination of the
engagement will not entitle the Company to a return of any of the consideration
due and paid to FHCP pursuant to Section 3 of this Agreement.
3. Consideration.
In
consideration for FHCP providing the services set forth in Section 1 above,
the
Company will make a cash payment to FHCP in the amount of $450,000 on the date
first written above. Such consideration shall be deemed fully-earned on the
date
of payment.
4. Notices.
All
notices, requests, demands, claims, and other communications hereunder shall
be
in writing. Any notice, request, demand, claim or other communication hereunder
shall be deemed duly delivered four business days after it is sent by registered
or certified mail, return receipt requested, postage prepaid, or one business
day after it is sent for next business day delivery via a reputable nationwide
overnight courier service, in each case to the intended recipient as set forth
below:
|
If
to FHCP:
Fountainhead
Capital Partners Limited
Xxxxxxx
Xxxxx
Xxx
Xxxxxx, Xx. Xxxxxx
Xxxxxx
XX0 0XX
Attention:
Xxxxxxx Xxxxxx
|
||
|
If
to the Company:
Equicap,
Inc.
0000
Xxxxxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
Attention:
Xxxxxx X. Xxxxxxxx
|
Copy
to:
Law
Offices of Xxxxxx Xxxxxx
000
Xxxxx Xxxx Xxxxxxxxx
Xxxxx
000
Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Facsimile:
(000) 000-0000
Attention:
Xxxxxx Xxxxxx
|
Any
Party
may give any notice, request, demand, claim or other communication hereunder
using any other means (including personal delivery, expedited courier, messenger
service, telecopy, telex, ordinary mail or electronic mail), but no such notice,
request, demand, claim or other communication shall be deemed to have been
duly
given unless and until it actually is received by the party for whom it is
intended. Any party may change the address to which notices, requests, demands,
claims, and other communications hereunder are to be delivered by giving the
other party notice in the manner herein set forth.
5. Miscellaneous.
(a) Entire
Agreement.
This
Agreement constitutes the entire agreement among the Parties and supersedes
any
prior understandings, agreements or representations by or among the Parties,
written or oral, with respect to the subject matter hereof.
(b) Succession
and Assignment.
This
Agreement shall be binding upon and inure to the benefit of the Parties named
herein and their respective successors and permitted assigns. No Party may
assign either this Agreement or any of its rights, interests or obligations
hereunder without the prior written approval of the other party.
(c) Counterparts
and Facsimile Signature.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original but all of which together shall constitute one and the same
instrument. This Agreement may be executed by facsimile signature.
(d) Headings.
The
section headings contained in this Agreement are inserted for convenience only
and shall not affect in any way the meaning or interpretation of this
Agreement.
(e) Governing
Law.
This
Agreement shall be governed by and construed in accordance with the internal
laws of the State of New York without giving effect to any choice or conflict
of
law provision or rule (whether of the State of New York or any other
jurisdiction) that would cause the application of laws of any jurisdictions
other than those of the State of New York. The prevailing party in any action
to
enforce this Agreement shall be entitled to recover its costs and expenses
related to such action, including reasonable attorneys’ fees.
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(f) Amendments
and Waivers.
The
Parties may mutually amend any provision of this Agreement at any time. No
amendment of any provision of this Agreement shall be valid unless the same
shall be in writing and signed by the Parties. No waiver of any right or remedy
hereunder shall be valid unless the same shall be in writing and signed by
the
party giving such waiver. No waiver by any party with respect to any default,
misrepresentation or breach of warranty or covenant hereunder shall be deemed
to
extend to any prior or subsequent default, misrepresentation or breach of
warranty or covenant hereunder or affect in any way any rights arising by virtue
of any prior or subsequent such occurrence.
(g) Severability.
Any
term or provision of this Agreement that is invalid or unenforceable in any
situation in any jurisdiction shall not affect the validity or enforceability
of
the remaining terms and provisions hereof or the validity or enforceability
of
the offending term or provision in any other situation or in any other
jurisdiction. If the final judgment of a court of competent jurisdiction
declares that any term or provision hereof is invalid or unenforceable, the
Parties agree that the court making the determination of invalidity or
unenforceability shall have the power to limit the term or provision, to delete
specific words or phrases, or to replace any invalid or unenforceable term
or
provision with a term or provision that is valid and enforceable and that comes
closest to expressing the intention of the invalid or unenforceable term or
provision, and this Agreement shall be enforceable as so modified.
(h) Construction.
The
language used in this Agreement shall be deemed to be the language chosen by
the
Parties to express their mutual intent, and no rule of strict construction
shall
be applied against any party. Any reference to any federal, state, local or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires
otherwise.
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as an
instrument under seal as of the date first written above.
| Fountainhead Capital Partners Limited | Equicap, Inc. | ||
| By: | By: | ||
|
Name: Xxxxxx
X. X. Xxxxxx
Title: Attorney-in-Fact
|
Name: Xxxxxx X. Xxxxxxxx Title:
President
|
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