Exhibit 4.7
Xx. Xxxx Xxxxxxxxx, Chief Executive Officer
Xx. Xxxxx X. Xxxxxx, Chief Financial
Officer American Bio Medica Corp.
000 Xxxxx Xx.
Xxxxxxxxxx, XX 00000
September 7, 2005
Gentlemen:
This Services Agreement (the "Agreement") sets forth the terms and
conditions under which Barretto Pacific Corporation ("BPC") has been engaged by
American Bio Medica Corp (the "Company") for the purpose of disseminating and
publicizing information regarding the Company, its business and its affairs to
members of the public in the United States of America with a view to encouraging
investment in the Company's securities. This Agreement is effective September 7,
2005 (the "Engagement Date").
The parties agree as follows:
1. The Services. In consideration of Company's payment of the Fee ( as
defined below), BPC shall provide the following services to the Company
(collectively, the "Services"), to the extent BPC determines each to be
necessary or appropriate for the Company:
(a) Disseminate Public Information. BPC will disseminate public
information about the Company, its business and affairs, in the United States of
America, to investment professionals and private parties who may have an
interest in investing in the Company's securities. BPC has relationships with
many members of the investment community including stockbrokers, buy and
sell-side portfolio managers, buy and sell-side research analysts, financial
newsletter writers, investment banks, fund managers, other investment
professionals, and private investors. As a result, BPC will disseminate public
information regarding the Company to its existing database of business
associates and to other investment professionals whom BPC will research and
identify based on their potential interest in the Company.
(b) Communicate with Investment Community. BPC will communicate on
an ongoing basis with members of the brokerage and investment community in the
United States of America whom BPC has contacted for the benefit of the Company
and who have expressed a continued interest in the Company.
(c) Conduct Conference Calls. BPC will conduct periodic group
conference calls with stockbrokers and other investment professionals who may
have an interest in the Company. The group conference calls will enable the
Company's senior management to present the Company's "story" to a captive
audience.
(d) Arrange Meetings with Investment Community. BPC will identify
investor conferences where the Company's management may be invited to attend,
and arrange group or individual meetings with portfolio managers, analysts,
stockbrokers and other investment professionals in key money center cities.
(e) Facilitate Research Reports. BPC will provide introductions to
buy and sell-side research analysts, and financial newsletter writers with the
goal of facilitating the production of one or more research reports or financial
newsletters on the Company.
(f) Facilitate Engagement of Investment Bankers. Should the Company
consider a public offering, private stock sale or other transaction, BPC will
assist in identifying and reaching agreement with an appropriate investment
banker if requested by the Company.
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(g) News Releases. BPC will review and, where appropriate, make
suggestions to modify the Company's proposed news releases. The Company will
reference BPC as a contact source on all Company news releases during the term
of BPC's engagement by the Company.
(h) Investor Relations. BPC will advise the Company regarding best
practices that are typical of the Investor Relations profession.
(i) Public Presentations. BPC will review and comment upon the
Company's web-site, brochure, PowerPoint presentation, fact sheet and other
investor oriented materials.
(j) Media Contacts. From time to time BPC will provide introductions
to members of the media who may be interested in the Company's affairs.
During the term of this Agreement BPC will devote the time and attention
to performing the Services for Company that BPC believes is necessary to provide
effective promotion of the Company and its affairs. Notwithstanding anything to
the contrary herein, the Services will not include any actions that constitute,
or that BPC believes constitute, or that BPC is advised by its counsel may
constitute, general solicitation or advertising of the Company's securities,
rendering legal opinions or other legal services, performing services which
would require BPC to register as a broker or dealer, or performing services that
would render BPC an "underwriter" pursuant to federal or state securities laws.
2. The Fee. As compensation for BPC rendering the Services during the term
of this Agreement, the Company shall pay BPC a fee of $115,000 in cash (the
"Cash Fee") and $60,000 in restricted stock (the "Restricted Stock") and the
expense reimbursements described in Section 3, below, collectively, (the "Fee").
The Cash Fee includes the following payments on the following dates:
Payment Payment Date
$16,000 Upon engagement
$ 9,000 On the 7th day of each month commencing October 7, 2005
An invoice for each payment following the initial payment will be e-mailed
to the Company two (2) business days prior to its due date. Failure to receive
this invoice will not relieve the Company of its obligation to promptly pay each
installment of the Cash Fee.
Payments shall be made by wire transfer to the following account:
Barretto Pacific Corporation
Key Bank of Washington
Account No. 471661005077
ABA No. 000000000
The Restricted Stock shall be paid as follows: On the Engagement Date the
Company will unconditionally instruct its transfer agent (the "Transfer Agent")
to issue to BPC a certificate for seventy five thousand (75,000) shares (the
equivalent of $60,000) of Company's authorized but unissued common stock (the
"Restricted Stock"). The Transfer Agent will be instructed to deliver the
certificate for the Restricted Stock to the Company, which shall hold it for the
benefit of BPC pursuant to this Agreement. Upon receipt of the certificate of
Restricted Stock the Company will advise BPC that it has received said
certificate. If the Company does not terminate this Agreement pursuant to
Section 5(b)(i), below, then, on December 7, 2005, Company shall deliver the
certificate representing the Restricted Stock to BPC and BPC shall own the
Restricted Stock free of all liens, claims, restrictions and encumbrances except
the limits of Rule 144. If the Company does terminate this Agreement pursuant to
Section 5(b)(i), below, then Company shall retain the certificate for the
Restricted Stock, and BPC will execute any document required by Company to allow
Company to cancel the certificate and also confirm that it [BPC] has no interest
in the Restricted Stock. If, within two (2) weeks of the Engagement Date, the
Company has not unconditionally instructed its Transfer Agent to issue the
certificate for the Restricted Stock then, the Company shall be obligated to
issue to BPC 120% of the shares of Restricted Stock described above and shall
instruct its Transfer Agent accordingly.
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The Cash Fee, the expense reimbursements described in Section 3, below,
and the Restricted Stock, shall be BPC's sole and exclusive entitlement against
the Company as compensation for the Services.
3. Expense Reimbursement. Except as specifically provided in this Section,
BPC shall not be entitled to be reimbursed for any of the expenses, out of
pocket or otherwise, that it incurs in the course of performing the Services.
The Company agrees to promptly reimburse BPC for travel related expenses such as
airfare, lodging and meals associated with attending meetings arranged on behalf
of the Company, or accompanying management to investment conferences, or other
matters that may require travel on behalf of the Company, all of which will be
billed to Company at BPC's actual cost (collectively, "Allowed Expenses"). BPC
shall provide Company with appropriate documentation to evidence the actual cost
of the Allowed Expenses. BPC will not incur any Allowed Expense without the
Company's prior approval, which approval shall constitute the Company's
agreement to promptly reimburse BPC for all such approved expenses.
Company understands that BPC's services (i) do not include the printing of
any documentary material on behalf of the Company and that any expenses that may
be incurred in that respect, (which will only be incurred with the Company's
prior consent), shall be separately reimbursed to BPC by the Company; and (ii)
do not include the cost of mailing the Company's internal "Investor Package" to
members of the public who have requested such information from BPC.
4. Company's Duties. Company shall diligently, competently and promptly
take all actions reasonably requested by BPC to enable BPC to fully and
satisfactorily perform the Services for Company. This may include, without
limit, making its senior executives available on a regular basis to BPC; keeping
BPC informed of Company's business plans and strategies; filing all required SEC
reports within the prescribed time periods; integrating BPC into all discussions
and processes related to investor relations issues (including the possibility of
the Company hiring other vendors who may perform similar Services); distributing
Company information packages requested by BPC by the end of the next business
day following the date of the Company's receipt of the contact information;
providing BPC with copies of all proposed news releases at least twenty-four
(24) hours before the anticipated release time; and indicating in all Company
news releases that BPC is the investor relations contact reference for
interested parties. If BPC's failure to perform the Services is due, in whole or
in part, to Company's failure to comply with this Section, BPC shall not be in
default under this Agreement.
5. Term and Termination
(a) Term. The Term of this Agreement will commence on the Engagement
Date and continue for a period of one (1) year (the "Initial Term"), unless
terminated as provided in the following subsection.
(b) Termination. This Agreement may be terminated only as follows:
(i) By Company during the Term. By notice given to BPC no
later than December 6, 2005 the Company may terminate this Agreement
without cause effective as of the close of business on January 6,
2006. In the event the Company terminates the Agreement prior to or
on December 6, 2005, the Company shall be obligated to pay BPC the
payments due upon engagement and subsequent monthly payments of
$9,000 through January 6, 2006, the final payment being due December
7, 2005; making the Company's total obligation to BPC $43,000.
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(ii) By BPC for Company's failure to Pay Fee, Reimburse
Expenses or Cooperate. By notice given to the Company at any time,
BPC may terminate this Agreement if the Company has failed to pay
any installment of the Fee when due and payable or failed to fully
and promptly reimburse any Allowed Expenses or approved expenses.
BPC may also terminate this Agreement if, within thirty (30) days of
giving a notice to Company that specifies in detail the facts
constituting Company's breach of certain of its obligations under
Section 4 hereof, Company has not cured the breach.
(iii) By Either Party for any Other Material Breach. Either
party may terminate this Agreement if, within thirty (30) days of
giving a notice to the other party that specifies in detail the
facts constituting the other party's breach of any material term of
this Agreement, not described in subsection (ii) above, the
breaching party has not cured the breach.
(c) Consequences of Termination. If this Agreement is properly
terminated, there shall be no further obligations on the part of the Company or
BPC, their respective stockholders, directors, officers, employees, agents or
representatives, except (i) Company will be obligated to pay BPC the Fee for all
periods through the effective date of the termination and to reimburse BPC for
all Allowed Expenses and for all other approved expenses incurred through that
date, and (ii) BPC shall be obligated to continue to comply with the provisions
of Section 9. Nothing herein shall relieve either party from liability for any
material breach of this Agreement.
(d) Limitation of Liability. Notwithstanding anything contained in
this Agreement to the contrary, in no event shall BPC's liability for any breach
of this Agreement exceed the amount paid by Company to BPC as Fees under this
Agreement.
(e) Liquidated Damages. If, following Company's breach of certain of
its obligations under Section 4 hereof BPC gives Company the notice required by
Section 5(b)(ii), above, Company fails to cure the specified breach within the
30-day cure period, and BPC terminates this Agreement on the grounds that
Company has breached some or all of its obligations under Section 4 hereof then,
in addition to payment of BPC's Fees, Allowed Expenses and other approved
expenses through the termination date, Company shall be obligated to pay BPC an
amount equal to two (2) months' Fee, as liquidated damages and not as a penalty.
The parties agree that BPC's actual damages in this circumstance will be
significant but are difficult to accurately predict and that the amount
described above is their mutual, good faith estimate of what those damages are
expected to be.
6. Other Consultants and other Clients. The Company reserves the right to
contract other firms to provide services similar to the Services and expressly
acknowledges that BPC shall be entitled to provide the Services to other public
companies provided that such other representation does not in any way interfere
or conflict with the effective performance of BPC's duties hereunder, and
provided, further, that BPC adheres to its obligations of confidentiality as set
forth in Section 9 hereof.
7. Status as Independent Contractor. All payments hereunder will be made
to BPC as an independent contractor and BPC will be solely responsible for
federal, state, and city tax filings and remittances. BPC is not, and by the
provision of the Services will not become, an agent or employee of the Company
and will have no authority, express or implied, to commit or otherwise obligate
the Company in any manner whatsoever.
8. Compliance with Laws. BPC represents and warrants that it will perform
the Services in compliance with all applicable laws and legal requirements,
including but not limited to all applicable federal and state securities laws
and regulations applicable to BPC or to the Company, and the Company's internal
policies with respect to Xxxxxxx Xxxxxxx, a copy of which has been provided to
BPC.
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9. Nondisclosure. BPC will not, either during or after the term of this
Agreement, directly or indirectly, divulge, publish or disclose any information
regarding the affairs or business of the Company or its affiliates except
information that is provided by the Company and expressly authorized to be
disclosed. BPC will not use for its own purposes, or for any purposes other than
providing the Services to the Company, any information BPC may acquire with
respect to the Company's affairs, business, or projects. Upon the termination of
this Agreement (for any reason) BPC will promptly return to the Company all
documents and other property of the Company including, without limitation, all
Confidential Information (as defined below) and all copies thereof. BPC will
deliver all such materials in accordance with the Company's directions.
BPC acknowledges that the Company may provide to BPC material, non-public
information ("Confidential Information") concerning the Company. BPC agree that
only those employees or advisors who have a need to know such information will
have access to such Confidential Information, and that any employee or advisor
who is provided with such access will be under a written obligation to maintain
the confidentiality of such Confidential Information on terms at least as
restrictive as those provided for herein. BPC will not trade the Company's stock
upon the basis of any material non-public information that BPC may possess.
BPC will segregate all Confidential Information from information of other
companies and will not reproduce any of the Confidential Information without the
Company's prior written consent. BPC acknowledges that (i) BPC has received and
read the Company's most recently filed public documents, and (ii) the Company
has made available to BPC all other documents and information that BPC has
requested relating to the Company.
10. Notice. Any notice required or permitted to be given by this Agreement
shall be in writing and must be given by personal delivery, by confirmed
facsimile transmission, by overnight courier, or by mailing, postage prepaid,
registered or certified mail. All notices shall be addressed to the receiving
party at its address set forth below or to such other address as the receiving
party may, by notice, designate. Notices shall be deemed to be given and
effective as follows: (i) if personally delivered or sent by facsimile, as of
the date the notice is personally delivered of faxed; (ii) if sent by overnight
courier, two (2) business days after delivery of the notice to the courier; and
(iii) if sent by certified or registered mail, four (4) business days after
mailing. Notice shall be addressed as follows:
(a) if to the Company, to: Xx. Xxxx Xxxxxxxxx, 000 Xxxxx Xx.,
Xxxxxxxxxx, XX 00000
(b) if to BPC, to: Xxxxxx Xxxxxxxx, 0000 Xxxx Xxxxx, Xxxxx 00, Xxx
0, Xxxxxxx, XX 00000
11. Binding Effect; No Assignment. This Agreement shall inure to the
benefit of and be binding upon the parties hereto. This Agreement may not be
assigned.
12. Severability. Each provision and paragraph of this Agreement is
declared to constitute a separate and distinct covenant and to be severable from
all other such separate and distinct covenants under this Agreement. If any
covenant or provision herein contained is determined to be void or
unenforceable, in whole or in part, such determination shall not affect or
impair the validity or enforceability of any other covenant or provision
contained in this Agreement and the remaining provisions of this Agreement shall
be valid and enforceable to the fullest extent provided by law.
13. No Brokers. BPC represents and warrants that it has not retained any
broker or other individual in connection with the subject matter of this
Agreement who may be entitled to be paid a fee by the Company in connection
herewith.
14. Entire Agreement. This Agreement replaces, supersedes and cancels all
prior agreements, representations and understandings between the Company and BPC
in respect of the subject matter of this Agreement.
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15. Governing Law. This Agreement shall be governed in all respects,
including validity, interpretation and effect, by the laws of the State of New
York applicable to contracts executed and to be performed wholly within such
state.
16. Dispute Resolution. All disputes arising out of this Agreement shall
be submitted to mediation. The goal of the mediation shall be to preserve and
enhance the parties' relationship. Any party desiring mediation shall begin the
process by giving the other party a written request to mediate, describing the
issues involved and inviting the other party to join with the requesting party
to name a mutually agreeable mediator and a time frame for the mediation
meeting. The parties and the mediator may adopt any procedural format they
choose. The contents of all discussions during the mediation shall be
confidential and non-discoverable in any subsequent litigation. If the parties
can agree upon a mutually acceptable resolution to the disagreement, it shall be
reduced to writing, signed by the parties, and the dispute shall be deemed
ended.
If the dispute is not successfully mediated, or if either party refuses to
mediate or to promptly name a mutually acceptable mediator, then any party who
desires dispute resolution may institute legal proceedings. In any such legal
proceeding, the prevailing party shall be awarded its reasonable legal fees and
costs, in addition to any other amounts to which it may be entitled.
17. Consent to Jurisdiction. The Company and BPC hereby irrevocably submit
in any suit, action or proceeding arising out of or relating to this Agreement
to the exclusive jurisdiction and venue of the federal and state courts of the
State of New York and irrevocably waive any and all objections to such courts'
exclusive jurisdiction and venue in any such suit, action or proceeding.
18. Waiver of Jury Trial. The Company and BPC hereby waive any right they
may have to a trial by jury in respect of any action, proceeding or litigation
directly or indirectly arising out of, under, or in connection with this
Agreement.
19. Amendments; Waivers. No amendment or waiver of any provision of this
Agreement shall be binding upon a party unless made in writing and signed by
such party.
20. Further Documents. The parties will execute and deliver all such
further documents and instruments and do all such further acts and things as may
be required to carry out the full intent and meaning of this Agreement.
21. Indemnification. BPC shall indemnify and hold harmless the Company,
its directors and officers, and each person, if any, who controls the Company
(within the meaning of Section 15 of the Securities Act or Section 20 of the
Securities Exchange Act of 1934, as amended) against all losses, claims,
damages, liabilities and expenses (including reasonable attorneys' and
accountants' fees, disbursements and expenses, as incurred) incurred by such
party arising out of or based upon (i) any failure of BPC to perform the
Services in accordance with applicable law, or (ii) any suit, claim,
investigation, action or other proceeding brought by any governmental entity in
connection with BPC's performance under this Agreement.
22. Counterparts. This Agreement may be executed in two or more partially
or fully executed counterparts, each of which shall be deemed an original, but
all of which together shall constitute but one and the same instrument provided
that neither party shall have any obligations hereunder until all parties have
become signatories hereto.
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Please confirm that the foregoing correctly sets forth our agreement by
initialing each page, signing the signature page, and returning to us via
facsimile a copy of this Agreement.
BARRETTO PACIFIC CORPORATION
By: /s/ Xxxxxx Xxxxxxxx
--------------------------------
Xxxxxx Xxxxxxxx, President
AGREED AND ACCEPTED
American Bio Medica Corp.
By: /s/ Xxxx Xxxxxxxxx
--------------------------------
Xxxx Xxxxxxxxx, Chief Executive Officer
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Xxxxx X. Xxxxxx, Chief Financial Officer
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