Consulting Agreement
This Consulting Agreement (the "Agreement) dated and effective as of March 31,
2003, is entered into between Surgical Safety Products, Inc. (the "Company) and
Resource Capital Management, Inc. (the "Consultants") for the purpose of
engaging the Consultants to act as sole restructuring agent to the Company to
create and execute a comprehensive capital restructuring (the "Restructuring")
of the Company's present capitalization. The strategy will include (i)
recommendation of legal counsel for the drafting of legal documents, memorandums
and securities fillings, (ii) recommendation of an investment banker to provide
analyst reports/valuation and fairness opinions, (iii) recommendation of one or
more consultants to provide corporate strategic planning, marketing strategy,
investor relations, financial public relations and corporate public relations;
and (iv) coordination of the execution of documents and activities of other
experts who participate in the Restructuring. The delivery of the duly executed
agreements and strategy outline shall be conclusive evidence that the
performance by the Consultants is satisfactory to the Company and that the
Consultants have performed in accordance with this Agreement.
1. Retention and Services. The Company hereby retains the Consultants as the
exclusive consultant in connection with the structuring, drafting,
presentation and negotiations and endeavoring to achieve a successful
conclusion of the Restructuring. Introductions to professionals and other
consultants made by the Consultants will be considered exclusive for
purposes of this Agreement. Documents prepared in connection with this
Agreement shall not be given to others, without approval from Consultants.
The Consultants will use their reasonable best efforts to structure, draft,
present and negotiate on behalf of Company to accomplish the conversion
from the Company's current to proposed capitalization. Upon execution of
this Agreement, the Consultants will meet with the Company at its offices
to review the available resources, time frames, and develop a critical path
for execution of the proposed strategy.
2. Collection of Information. The initial undertakings by the Consultants will
include the collection, confirmation and verification of the following
information; (i) articles of incorporation or other charter documents and
any amendments thereto; (ii) by-laws; (iii) minutes of all meetings of the
board of directors since inception; (iv) minutes of all meetings of
shareholders; (v) all communications with shareholders, including notices
regarding annual meetings, special meetings, along with copies of the
agenda's of such meetings; (vi) leases the Company is currently a party to;
(vii) list of all pending or threatened litigation, with legal counsel's
statement as to current status and likely outcome as well as a list of any
past litigation with outcome noted; (viii) merger and acquisition
agreements, letters of intent, and plans of reorganization entered into by
the Company; (ix) employment agreements; questionnaire completed by all
board members and officers of the Company; (x) any stock options, plans or
agreements of the Company; (xi) any finders' fee agreements or agreements
with any promoters; (xii) the Company's most recent business plans; (xiii)
list of shareholders with number of shares owned certified as correct by
the Company's transfer agent; (xiv) any material agreements to which the
Company is a party; (xv) the amount of money that the Company wishes to
raise, and the potential sources, if known, (xvi); a detailed description
of the use of proceeds from a successful financing; and (xvii) most recent
financial statements.
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3. Coordination; Preparation of Documents; Termination. After collection of
the above-described information about the Company, the Consultant(s) will
coordinate with experts engaged by the Company and by the Consultants and
prepare documents for the Restructuring. The Consultants will use its
reasonable best efforts to accomplish a successful Restructuring utilizing
information obtained by the Consultants from the Company, including but not
limited to: investor contacts, instrumentation, presentation, economic
analysis, financial modeling, and negotiations skills needed to achieve a
successful Restructuring. The Consultants or the Company, with thirty (30)
days prior notice, may terminate this Agreement without cause; provided,
however, that any such termination will not terminate Sections 5, 10, 11
and 13 or Schedule A of this Agreement. In the event of termination, if any
restructuring takes place within two (2) years of the date of termination
with any party with which the Consultants or the Company has been in
contact with respect to possible participation in the Restructuring during
the term of this Agreement, the Consultants will be compensated as though
the transaction occurred during the term of this Agreement. In the event of
termination, the Company will not be free to use any documents prepared by
or with the help of the Consultants during the term of the Agreement, the
Company will not, directly or indirectly, offer the Restructuring, or
otherwise contact, approach or negotiate with respect thereto, with any
person or persons, other than through the Consultants, as agent, except as
provided above.
4. Information provided by the Company. In connection with activities
hereunder, the Company will furnish the Consultants and their counsel upon
request with all material and information regarding the business and
financial condition of the Company available to the Company (all such
information so furnished being the "Information"). The Consultants will
perform due diligence, however, the Company recognizes and confirms that
the Consultants: (a) will use and rely primarily on the Information and on
information available from generally recognized public sources in
performing the services contemplated by the Agreement without having
independently verified the same; (b) are authorized as the Company's sole
restructuring agent, to transmit to any prospective investor/lender a copy
or copies of the Information, and any additional information expressly; (c)
does not assume responsibility for the accuracy or completeness of the
Information; (d) will not make an appraisal of any securities or assets of
the Company; and (e) retains the right to continue to perform due diligence
during the course of the engagement. The Consultants agree to keep the
Information confidential, so long as it is and remains non-public, unless
disclosure is required by law or requested by any government or regulatory
agency or body, and the Consultants will not make use thereof, except in
connection with their services hereunder for the Company. The Company
agrees to advise the Consultants promptly of the occurrence of any event or
any other change known to it which results in the Information containing
any untrue statement of a material fact or omitting to state any material
fact necessary to make the statements contained therein, in light of the
circumstances under which they were made, not misleading.
5. Use of Name. The Company agrees that any reference to the Consultants in
any release, communication, or material distributed to prospective
investors or lenders is subject to the Consultants' prior written approval.
If the Consultants resign prior to the dissemination of any such release,
communication or material, no reference shall be made therein to the
Consultants.
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6. Use of Advice. No advice rendered by the Consultants in connection with the
services performed by the Consultants pursuant to this Agreement will be
quoted by either party hereto, nor will any such advice be referred to in
any report, document, release or other communication, whether written or
oral, prepared, issued or transmitted by such party or any Person or
corporation controlling, controlled by or under common control with such
party or any director, officer, employee, agent or representative of any
such party thereof, without the prior written authorization of all parties
hereto, except to the extent required by law (in which case the appropriate
party shall so advise the other in writing prior to such use and shall
consult with the other with respect to the form and timing of disclosure),
provided that the foregoing shall not prohibit appropriate internal
communication or reference with respect to such advice internally within
such parties.
7. Compensation. As full payment for services rendered and to be rendered
hereunder by the Consultants, the Company agrees to issue to the Consultant
50,000 shares of the Company's common stock after giving effect to the
Restructuring. The Consultant is acquiring such stock for its own account
and not with a view of distribution and acknowledges that such shares have
not been registered under the Securities Act of 1933 or the securities laws
of any state. As unregistered shares, the Consultant acknowledges that such
shares are not freely tradeable and may be resold only pursuant to an
effective registration statement or an exemption from registration.
Certificates representing such shares will bear an appropriate legend as to
the restrictions on transfer.
8. Additional Compensation. In the event the Recapitalization or any other
corporate action during the term results in a combination or other
reduction in its outstanding shares of Common Stock into a smaller number
of such shares, then, in such case, the Company will immediately cause to
be issued additional restricted shares to the Consultant such that the
Consultant will be the holder of the same number of shares immediately
after the reduction as before the reduction. The certificate representing
such additional shares shall bear the restrictive legend and be subject to
the limitations on transfer specified in Section 7 of this Agreement.
9. Agreements Relating to Issuance of Stock. The Company agrees that for a
period of nine (9) months from the date of this Agreement it will not
register for sale any shares of capital stock of any class or series, or
securities exchangeable for or convertible into or giving any person the
right to subscribe for or purchase shares of capital stock of any class or
series, under the Securities Act of 1933; or issue any shares of capital
stock of any class or series, or other securities exchangeable for or
convertible into or giving any person the right to subscribe for or
purchase shares of capital stock of any class or series, pursuant to a
registration statement heretofore filed by the Company under the Securities
Act of 1933 except as set forth below pursuant in each case to a consulting
agreement between the Company and such person:
(a) securities representing up to 1,600,000 shares of Common Stock in the
name of Xxxx Xxxxxxx;
(b) securities representing up to 1,600,000 shares of Common Stock in the
name of Xxxxx Xxxxxxx;
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(c) securities representing up to 1,600,000 shares of Common Stock in the
name of Xxxx XxXxxxx;
(d) securities representing up to 1,600,000 shares of Common Stock in the
name of Xxxxxxx Xxxx; and
(e) securities representing up to 1,600,000 shares of Common Stock in the
name of Xxxxxxxx Xxxxxx.
10. Representations and Warranties. The Company represents and warrants to the
Consultants that:
(a) this Agreement has been duly authorized, executed and delivered by the
Company, and, assuming the due execution by the Consultants,
constitutes a legal, valid and binding Agreement of the Company
enforceable against the Company in accordance with its terms;
(b) to the best of its knowledge, the Information will not, when delivered
at any closing of a financing, contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein in light of the circumstances under which they were
made not misleading.
11. Indemnity. In partial consideration of the services to be rendered
hereunder, the Company agrees to indemnify the Consultants in accordance
with Schedule A attached hereto. Other persons will be working with the
Consultants on this transaction and the Consultants will take full
responsibility for the compensation of all such other persons, except that
the Company agrees to indemnify such other persons, and their principals,
in accordance with Schedule A attached, hereto, as though they were parties
named therein.
12. Conditions of Engagement. It is understood that the execution of this
Agreement shall not be deemed or construed as obligating the Consultants or
Company to place any financing.
13. Survival of Certain Provisions. The indemnity and contribution Agreements
contained in Schedule A to this Agreement and the representations and
warranties of the Company contained in Section 10 of this Agreement shall
remain operative and in full force and effect regardless of (a) any
investigation made by or on behalf of Consultants, or any person
controlling them, (b) completion of the Restructuring, (c) the resignation
of the Consultants or any termination of the Consultants' services, or (d)
any termination of this Agreement, and shall inure to the benefit of any
successors, assigns, heirs and personal representatives of the Company, the
Consultants, the Indemnified Parties and such persons.
14. Notices. Notice given pursuant to any of the provisions of this Agreement
shall be in writing and shall be mailed or delivered (a) if to the Company,
at the addresses set forth above, and (b) if to Consultants, at the offices
of Resource Capital Management, Inc., 000 Xxxxx Xxxx Xxx Xxxx, Xxxxx 000,
Xxxxxxx, Xxxxx 00000, Attn: Xxxxx Xxxx.
15. Counterparts. This Agreement may be executed in two or more counterparts
and the counterparts, when executed, shall constitute a single, enforceable
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document. The signature on counterparts may be transmitted by fax, with
documents so transmitted having the same force and effect as the executed
originals.
16. Third Party Beneficiaries. This Agreement has been made and is made solely
for the benefit of the Company, the Consultants and the other Indemnified
Persons referred to in Schedule A hereto and their respective successors
and assigns, and no other Person shall acquire or have any right under or
by virtue of this Agreement.
17. Construction. This Agreement incorporates the entire understanding of the
parties and supersedes all previous Agreements relating to the subject
matter hereof should they exist and shall be governed by, and construed in
accordance with, the laws of the State of New York, without regard to
principles of conflicts of law.
18. Headings. The section headings in this Agreement have been inserted as a
matter of convenience of reference and are not part of this Agreement.
19. Press Announcements. At any time after the consummation or other public
announcement of the Restructuring, and with the approval of the Company
(which approval shall not be unreasonably withheld or delayed), the
Consultants may at their own expense place an announcement in such
newspapers and publication as they may choose, stating that Consultants
have acted as exclusive financial advisor and sole agent to the Company in
connection with the Restructuring contemplated by this Agreement.
20. Amendment. This Agreement may not be modified or amended except in writing
duly executed by the parties hereto.
21. Matters for Arbitration. The Parties agree that all questions or matters in
dispute with respect to this Agreement shall be submitted to binding
arbitration as set forth herein.
22. Notice. It shall be a condition precedent to the right of any party to
submit any matter to arbitration pursuant to the provisions hereof, that
any party intending to refer any matter to arbitration shall have given not
less than five (5) business days' prior written notice of its intention to
do so to the other party together with particulars of the matter in
dispute. On the expiration of such five (5) business days the party who
gave such notice may proceed to refer the dispute to arbitration as
provided for in Section 23.
23. Appointments. The party desiring arbitration shall appoint one arbitrator,
and shall notify the other party of such appointment, and the other party
shall, within five (5) business days after receiving such notice, appoint
an arbitrator, and the two arbitrators so named, before proceeding to act,
shall, within five (5) business days of the appointment of the last
appointed arbitrator, unanimously agree on the appointment of a third
arbitrator, to act with them and be chairman of the arbitration herein
provided for. If the other party shall fail to appoint an arbitrator within
five (5) business days after receiving notice of the appointment of the
first arbitrator, and if the two arbitrators appointed by the parties shall
be unable to agree on the appointment of the chairman, the chairman shall
be appointed in accordance with the Federal Arbitration Act. Except as
specifically otherwise provided in this Section, the arbitration herein
provided for shall be conducted in accordance with the Federal Arbitration
Act. The chairman shall fix a time and place for the purpose of hearing the
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evidence and representatives of the parties, and he shall preside over the
arbitration and determine all questions of procedure not provided for by
the Federal Arbitration Act or this section. After hearing any evidence
that the parties may submit, the arbitrators shall make an award and reduce
the same to writing, and deliver one copy thereof to each of the parties.
The expense of the arbitration shall be paid as specified in the award.
24. Award. The Parties agree that the award of a majority of the arbitrators
shall be final and binding upon each of them.
25. Legal Services. The Consultants will recommend legal counsel to do the
Restructuring. Further it is understood that the Consultants are not
lawyers and are not providing, directly or indirectly, any legal service.
Resource Capital Management, Inc.
By:__________________________________
Printed Name:
Title:
Surgical Safety Products, Inc.
By:__________________________________
Printed Name:
Title:
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SCHEDULE A
This Schedule A is a part of the Consulting Agreement (the "Agreement")
dated March 31, 2003 between Surgical Safety Products, Inc. (the "Company") and
Resource Capital Management, Inc. (the "Consultants"). Unless otherwise noted,
all capitalized terms used herein shall have the meanings set forth in the
Agreement.
Since the Consultants will be acting on behalf of the Company in connection
with the transaction contemplated by the Agreement, and as part of the
consideration for the Agreement of the Consultants to furnish their services
pursuant to such Agreement, the Company agrees to indemnify and hold harmless
the Consultants, and other persons controlling the Consultants, or any of their
respective affiliates within the meaning of either Section 15 of the Securities
Act of 1933 or Section 20 of the Securities Exchange Act of 1934, and the
respective agents, employees, officers, directors, partners, counsel and
shareholders of such persons (the Consultants and each such other person or
entity being referred to as an "Indemnified Person") to the fullest extent
lawful, from and against all claims, liabilities, losses, damages and expenses
(or actions taken in respect thereof) related to or arising out of (i) actions
taken or omitted to be taken by the Company, their affiliates, employees or
agents (other than an Indemnified Person), (ii) actions taken or omitted to be
taken by an Indemnified Person (including acts or omissions constituting
ordinary negligence) pursuant to the terms of, or in connection with services
rendered pursuant to and in accordance with the terms of, the Agreement or any
transaction or proposed transaction contemplated thereby or any Indemnified
Person's role in connection therewith, provided, however, that the Company shall
not be responsible for any losses, claims, damages, liabilities or expenses to
the extent that it is finally judicially determined that they result primarily
from actions taken or omitted to be taken by such Indemnified Person which
constitute willful misconduct or to be due to such Indemnified Person's gross
negligence, and (iii) any untrue statement or alleged untrue statement of a
material fact contained in the Information or arising out of or based upon any
omission or alleged omission of a material fact required to be state therein or
necessary to make the statements therein not misleading, except that the
indemnity obligations arising hereunder in respect of losses, claims, damages,
liabilities or expenses asserted by any purchaser and related to or arising out
of alleged omissions or misstatements of material facts tin the Information
shall not inure to the benefit of any Indemnified Person to the extent that the
Company shall have requested the Consultants to deliver, and the Consultants
shall have failed to deliver, to such purchaser an amendment or supplement to
the Information prepared by the Company and provided to the Consultants not less
than one (1) full business day prior to the sale to such purchase, if the untrue
statement of a material fact from such Information was correct in such amendment
or supplement thereto. Notwithstanding any of the indemnification or
contribution provisions contained herein, the Company shall not be required to
make reimbursement or payment of any settlement, or any expenses or cost
incurred in connection therewith, effect without the Company's prior written
consent, which consent shall not be unreasonably withheld.
Each Indemnified Person shall give prompt written notice to the Company
after the receipt by such Indemnified Person of any written notice of the
commencement of any action, suit or proceeding for which such Indemnified Person
will claim indemnification or contribution pursuant to this Agreement. The
Company shall have the right, exercisable by giving written notice from such
Schedule A - Page 1
Indemnified Person within 20 business days after the receipt of written notice
from such Indemnified Person of such commencement, to assume, at their expense,
the defense of any such action, suit or proceeding; provided, however, that an
Indemnified Person shall have the right to employ counsel in any such action,
suit or proceeding, and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such Indemnified Person
unless: (i) the Company fails to assume the defense of such action, suit or
proceeding or fails to employ counsel reasonably satisfactory to such
Indemnified Person in any such action, suit or proceeding; or (ii) the Company
and such Indemnified Person shall have been advised by counsel that there may be
one or more defenses available to such Indemnified Person which are different
from or additional to those available to the Company or another Indemnified
Person, as the case may be (in which case, if such Indemnified Person notifies
the Company in writing that it elects to employ separate counsel at the expense
of the Company, the Company shall not have the right to assume the defense of
such action, suit or proceeding on behalf of such Indemnified Person); it being
understood, however, that the Company shall not, in connection with any one such
action or proceeding or separate but substantially similar or related actions or
proceeding arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys at
any time acting for all Indemnified Persons in any one jurisdiction.
If for any reason (other than the willful misconduct or gross negligence of
an Indemnified Person as provided above) the foregoing indemnity is unavailable
to an Indemnified Person or insufficient to hold an Indemnified Person harmless,
then the Company, to the extent permitted by law, shall contribute to the amount
paid or payable by such Indemnified Person as a result of such claims,
liabilities losses, damages or expenses in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and by the
Consultants on the other, from the transaction or proposed transaction under the
Agreement or, if allocation on that basis is not permitted under applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
received by the Company, on the one hand and by the Consultants on the other,
but also the relative fault of the Company and the Consultants, as well as any
relevant equitable considerations. Notwithstanding the provisions, the aggregate
contribution of all Indemnified Persons to all claims, liabilities, losses,
damages and expenses shall not exceed the amount of fees actually received by
the Consultants pursuant to the Agreement. It is hereby further agreed that the
relative benefits to the Company on the one hand and the Consultants on the
other with respect to any transaction or proposed transaction contemplated by
the Agreement shall be deemed to be in the same proportion as (i) the gross
proceeds of the transaction bears to (ii) the fees paid to the Consultants with
respect to such transaction.
The relative fault of the Company on the one hand and the Consultants on
the other with respect to the transaction shall be determined by reference to,
among other things, whether any untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
Information supplied by the Company or by the Consultants, and the parties
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. No Indemnified Person shall have any
liability to the Company or any other officer, director, employee or affiliate
thereof in connection with the services rendered pursuant to the Agreement
except for any liability for claims, liabilities, losses or damages finally
judicially determined to have resulted primarily from actions taken or omitted
Schedule A - Page 2
to be taken by such Indemnified Person (constituting willful misconduct) or as a
result of gross negligence and except for breeches or violations by the
Consultants of its obligations under the Agreement. The Indemnity, contribution
and expense reimbursement obligations set forth herein (i) shall be in addition
to any liability the Company may have to any Indemnified Person at common law or
otherwise, (ii) shall apply to any modification of the Consultants' engagement
and shall remain in full force and effect following the completion or
termination of the Agreement, (iii) shall remain operative and in full force and
effect regardless of any investigation made by or on behalf of the Consultants
or any other Indemnified Person and (iv) shall be binding on any successor or
assign of the Company and successors or assigns to all or substantially all of
the Company's business and assets.
In addition, the Company agrees to reimburse such Indemnified Person for
all expenses (including fees and expenses of counsel) as they are incurred by
such Indemnified Person (upon receipt by the Company from such Indemnified
Person of any undertaking by such Indemnified Person promptly to repay to the
Company any such reimbursement upon a final judicial determination that such
Indemnified Person is not entitled to Indemnification pursuant to the proceeding
paragraphs) in connection with investigating, preparing or defending any such
action or claim, whether or not in connection with litigation in which any
Indemnified Person is a named party.
Exhibit A - Page 3
