EXHIBIT 10.10
FINANCIAL ADVISORY AND CONSULTING AGREEMENT
This agreement ("Agreement") is made and entered into this 1st day of
March 2001 between Metropolitan Health Networks, a Florida corporation (the
"Company"), and Xxxxxx Xxxxxx Financial (the "Consultant"). For good and
valuable consideration (the sufficiency and receipt of which is hereby
acknowledged) the Company and Xxxxxx Xxxxxx hereto mutually agree and intend to
be legally bound for themselves and their respective heirs, legal
representatives, successors and assigns to the terms of this Agreement.
1. Purpose. The Company hereby retains the Consultant on an
non-exclusive basis during the term specified to render consulting advice to the
Company relating to financial and similar matters, upon the terms and conditions
as set forth herein.
Terms and Consideration. This Agreement shall be effective for a period of three
years commencing on the date first written above (the "Engagement Period"). The
Company shall issue to Consultant, upon execution of this Agreement, 200,000
common stock purchase warrants (the "Warrants") exercisable for a period of
three (3) years, with an exercise price equal to $1.00. The Warrants shall
contain customary terms, including, but not limited to, demand and piggyback
registration rights
3. Duties of Consultant. During the term of this Agreement, the
Consultant will provide the Company with such regular and customary consulting
advice as is reasonably requested by the Company, provided that the Consultant
shall not be required to undertake duties not reasonably within the scope of the
consulting advisory services contemplated by this Agreement. In the event the
Consultant shall act as financial advisor to, or placement agent for, the
Company in connection with any merger, acquisition, sale or purchase of assets,
public or private offering of securities or similar transaction, such services
shall be provided to the Company pursuant to a separately negotiated agreement
between the Parties (Letter Agreement Dated February 15, 2001). In performance
of these duties, the Consultant shall provide the Company with the benefits of
its best judgment and efforts. It is understood and acknowledged by the parties
that the value of the Consultant's advice is not measurable in any quantitative
manner, and that the Consultant shall not be obligated to spend any specific
amount of time doing so. The Consultant's duties may include, but not
necessarily be limited to:
A. Providing sponsorship and exposure in connection with the
dissemination of corporate information regarding the Company to the investment
community at large.
B. Assisting in the Company's financial public relations, including
discussions between the Company and the financial community.
C. Advice regarding the financial structure of the Company and its
divisions or subsidiaries or any programs and projects, as such issues relate to
the public market for the Company's equity securities.
D. Rendering advice with respect to any acquisition program of the
Company, as such program
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relates to the public market for the Company's equity securities.
E. Rendering advice regarding the public market for the Company's
securities and the timing and structure of any future public offering or private
placement of the Company's equity securities.
F. Introducing the company to potential retail and institutional
investors.
4. Relationships with others. The Company acknowledges that the
Consultant or its affiliates is in the business of providing financial service
and consulting advice (of all types contemplated by this Agreement) to others.
Nothing contained herein shall be construed to limit or restrict the Consultant
in conducting such business with respect to others, or in rendering such advise
to others. In connection with the rendering of services hereunder, Consultant
has been or will be furnished with confidential information concerning the
Company including, but not limited to, financial statements and information,
cost and expense data, production data, trade secrets, marketing and customer
data, and such other information not generally obtained from public or published
information or trade sources. Such information shall be deemed "Confidential
Material" and, except as specifically provided herein, shall not be disclosed by
Consultant without prior written consent of the Company and shall be used only
in compliance with applicable laws, including but not limited to Regulation FD..
In the event Consultant is required by applicable law or legal process to
disclose any of the Confidential Material, it is agreed that Consultant will
deliver to the Company prompt notice of such requirement prior to disclosure of
same to permit the Company to seek an appropriate protective order and/or waive
compliance of this provision. If, in the absence of a protective order or
receipt of written waiver, Consultant is nonetheless, in the written opinion of
counsel, compelled to disclose any Confidential Material, Consultant may do so
without liability hereunder provided that notice of such prospective disclosure
is delivered to the Company prior to actual disclosure, to the extent
practicable. Following the termination of this Agreement, Consultant shall
deliver to the Company all Confidential Material.
5. Consultant's Liability. In the absence of gross negligence or
willful misconduct on the part of Xxxxxx Xxxxxx or Xxxxxx Xxxxxx'x material
breach of this Agreement, Xxxxxx Xxxxxx shall not be liable to the Company or to
any officer, director, employee, agent, representative, stockholder or creditor
of the Company for any action or omission of Xxxxxx Xxxxxx or any of its
officers, directors, employees, agents, representatives or stockholders in the
course of, or in connection with, rendering or performing any services
hereunder. The liability of Xxxxxx Xxxxxx pursuant to this Engagement Letter
shall be limited to the aggregate fees received by Xxxxxx Xxxxxx hereunder,
which shall not include any liability for incidental, consequential or punitive
damages. The Company agrees to indemnify Xxxxxx Xxxxxx in accordance with the
provisions of Annex A hereto, which is incorporated by reference and made a part
hereof.
6. Termination. This Engagement Letter may be terminated at any time
during the Engagement Period by Xxxxxx Xxxxxx upon fifteen (15) days prior
written notice to the Company, in the event that Xxxxxx Xxxxxx becomes aware of
(i) any material adverse change in the business or operations of the Company
which Xxxxxx Xxxxxx reasonably believes would adversely affect Xxxxxx Xxxxxx'x
ability to render the services contemplated hereunder, (ii) any material
misrepresentation by the Company with respect to the business operations,
assets, or financial condition, results of operations or prospects of the
Company, or (iii) any breach by the Company of its obligations under this
Engagement Letter.
In the event of termination (i) this Engagement Letter shall become
void, without liability on the part
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of Xxxxxx Xxxxxx or its affiliates, directors, officers or stockholders, and
(ii) Xxxxxx Xxxxxx shall be entitled to retain or receive compensation for
services it has rendered, including payment for expenses it has incurred up to
the date of such termination.
7. Expenses. The Company, upon receipt of appropriate supporting
documentation, shall reimburse the Consultant for any and all reasonable
out-of-pocket expenses incurred in connection with services provided to the
Company, subject to prior written approval of the Company. Anything herein to
the contrary notwithstanding, the Consultant shall not be required to obtain
prior written approval of individual expenses of $250 or less.
8. Limitation Upon the Use of Advice and Services.
(a) No person or entity, other than the Company or any of its
subsidiaries or directors or officers of each of the foregoing, shall be
entitled to make use of or rely upon the advice of the Consultant to be given
hereunder, and the Company shall not transmit such advice to, or encourage or
facilitate the use or reliance upon such advice by others without the prior
written consent of the Consultant.
(b) The Company hereby acknowledges that the Consultant, for services
rendered under this Agreement, makes no commitment whatsoever to recommend or
advise its clients to purchase the securities of the Company. Research reports
that may be prepared by the Consultant will, when and if prepared, be based
solely on the merits, and independent judgment of analysts of the Consultant.
(c) The Company hereby acknowledges that the Consultant, for services
rendered under this Agreement, makes no commitment whatsoever to make a market
in any of the Company's securities on any stock exchange or in any electronic
marketplace. Any decision by Consultant to make a market in any of the Company's
securities shall be based solely on the independent judgment of Consultant's
traders and related supervisory personnel.
(d) Use of the Consultant's name in annual reports or any other report
of the Company or releases by the Company must have the prior written approval
of the Consultant unless the Company is required by law to include Consultant's
name in such annual reports, other report or release of the Company, in which
event Consultant will be furnished with copies of such annual reports or other
reports or releases using Consultant's name in advance of publication by the
Company.
9. Severability. Every provision of this Agreement is intended to be
severable. If any term or provision hereof is deemed unlawful or invalid for any
reason whatsoever, such unlawfulness or invalidity shall not affect the validity
of this Agreement.
10. Miscellaneous.
(a) Any notice or other communication between parties hereto shall be
sufficiently given if sent by certified or registered mail, postage prepaid, or
faxed and confirmed if to the Company, addressed to it at Metropolitan Health
Networks, Inc., 000 Xxxxxxxxxx Xxxxxx, Xxxx Xxxx Xxxxx, XX 00000, or if to the
Consultant, addressed to it at Xxxxxx Xxxxxx, 0000 Xxxxxx Xxxxxx, Xxxxx X 000,
Xxxx Xxxxxxx,, XX 00000. Such notice or other communication shall be deemed to
be given on the date of receipt.
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(b) If the Consultant shall cease to do business, the provisions hereof
relating to duties of the Consultant and compensation by the Company as it
applies to the Consultant shall thereupon cease to be in effect, except for the
Company's obligation of payment for services rendered prior thereto. This
Agreement shall survive any merger of, acquisition of, or acquisition by the
Consultant and/or the Company and after any such merger or acquisition shall be
binding upon the Consultant, the Company and the corporation surviving such
merger or acquisition, as the case may be.
(c) This Agreement embodies the entire agreement and understanding
between the Company and the Consultant and supersedes any and all negotiations,
prior discussions and preliminary and prior agreements and understandings
related to the central subject matter hereof.
(d) This agreement has been duly authorized, executed and delivered by
and on behalf of the Company and the Consultant.
(e) This Agreement shall be construed and interpreted in accordance
with the laws of the State of Florida, without giving effect to conflicts of
laws.
(f) There is no relationship of partnership, agency, employment,
franchise or joint venture between the parties. Neither party has the authority
to bind the other or incur any obligation on its behalf.
(g) This Agreement and the rights hereunder may not be assigned by
either party (except by operation of law) and shall be binding upon and inure to
the benefit of the parties and their respective successors, assigns and legal
representatives.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date hereof.
Metropolitan Health Networks
By:
Name:
Title
Xxxxxx Xxxxxx Financial
By:
Name:
Title
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ANNEX A
INDEMNIFICATION
Recognizing that transactions of the type contemplated in this
engagement sometimes result in litigation and that Xxxxxx Xxxxxx'x role is
advisory, Metropolitan Health Networks, Inc. (the "Company") agrees to indemnify
and hold harmless Xxxxxx Xxxxxx, its affiliates and their respective officers,
directors, employees, agents and controlling persons (collectively, the
"Indemnified Parties"), from and against any losses, claims, damages and
liabilities, joint or several, related to or arising in any manner out of any
transaction, proposal or any other matter (collectively, the "Matters")
contemplated by the engagement of Xxxxxx Xxxxxx hereunder, and will promptly
reimburse the Indemnified Parties for all expenses (including reasonable fees
and expenses of legal counsel) as incurred in connection with the investigation
of, preparation for, or defense of any pending or threatened claim related to or
arising in any manner out of any Matter contemplated by the engagement of Xxxxxx
Xxxxxx hereunder, or any action or proceeding arising therefrom (collectively,
"Proceedings"), whether or not such Indemnified Party is a formal party to any
such Proceeding. Notwithstanding the foregoing, the Company shall not be liable
in respect of any losses, claims, damages, liabilities or expenses that a court
of competent jurisdiction shall have determined by final judgment resulted
solely from the gross negligence or willful misconduct of an Indemnified Party.
The Company further agrees that it will not, without the prior written consent
of Xxxxxx Xxxxxx, settle compromise or consent to the entry of any judgment in
any pending or threatened Proceeding in respect of which indemnification may be
sought hereunder (whether or not Xxxxxx Xxxxxx or any Indemnified Party is an
actual or potential party to such Proceeding), unless such settlement,
compromise or consent includes an unconditional release of Xxxxxx Xxxxxx and
each other Indemnified Party hereunder from all liability arising out of such
Proceeding.
The Company agrees that if any indemnification or reimbursement sought
pursuant to this letter were for any reason not to be available to any
Indemnified Party or insufficient to hold it harmless as and to the extent
contemplated by this agreement, then the Company shall contribute to the amount
paid or payable by such Indemnified Party in respect of losses, claims, damages
and liabilities in such proportion as is appropriate to reflect the relative
benefits to the Company and its stockholders on the one hand, and Xxxxxx Xxxxxx
on the other, in connection with the Matters to which such indemnification or
reimbursement relates or, if such allocation is not permitted by applicable law,
not only such relative benefits but also the relative faults of such parties as
well as any other equitable considerations. It is hereby agreed that the
relative benefits to the Company and/or its stockholders and to Xxxxxx Xxxxxx
with respect to Xxxxxx Xxxxxx engagement shall be deemed to be in the same
proportion as (i) the total value paid or received or to be paid or received by
the Company and/or its stockholders pursuant to the Matters (whether or not
consummated) for which Xxxxxx Xxxxxx is engaged to render services bears to (ii)
the fees paid to Xxxxxx Xxxxxx in connection with such engagement. In no event
shall the Indemnified Parties contribute or otherwise be liable for an amount in
excess of the aggregate amount of fees actually received by Xxxxxx Xxxxxx
pursuant to such engagement (excluding amounts received by Xxxxxx Xxxxxx as
reimbursement of the expenses).
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The Company further agrees that no Indemnified Party shall have any
liability (whether direct or indirect, in contract or tort or otherwise) to the
Company for or in connection with Xxxxxx Xxxxxx'x engagement hereunder except
for losses, claims, damages, liabilities or expenses that a court of competent
jurisdiction shall have determined by final judgment resulted solely from the
gross negligence or willful misconduct of such Indemnified Party. The indemnity,
reimbursement and contribution obligations of the Company shall be in addition
to any liability which the Company may otherwise have and shall be binding upon
and inure to the benefit of any successors, assigns, heirs and personal
representatives of the Company or an Indemnified Party.
The indemnity, reimbursement and contribution provisions set forth
herein shall remain operative and in full force and effect regardless of (i) any
withdrawal, termination or consummation of or failure to initiate or consummate
any Matter referred to herein, (ii) any investigation made by or on behalf of
any party hereto or any person controlling (within the meaning of Section 15 of
the Securities Act of 1933 as amended, or Section 20 of the Securities Exchange
Act of 1934, as amended) any party hereto, (iii) any termination or the
completion or expiration of this letter of Xxxxxx Xxxxxx engagement and (iv)
whether or not Xxxxxx Xxxxxx shall, or shall not be called upon to, render any
formal or informal advice in the course of such engagement.
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