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EXHIBIT 10.11
[Xxxxx Xxxxxx Letterhead]
FINANCIAL ADVISORY AGREEMENT
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May 2, 2001
American Bio Medica Corporation
000 Xxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxxx
President
Gentlemen:
This will confirm that Xxxxx Xxxxxx & Co., Inc. ("Xxxxx Xxxxxx") has been
retained as a financial advisor to American Bio Medica Corporation (the
"Company") to perform such financial consulting services as the Company may
reasonably request. The term of this agreement (the "Agreement") shall extend
through May 2, 2002, provided, however, that either the Company or Xxxxx Xxxxxx
may terminate this Agreement prior to such date and as of the end of any month
upon no less than 30 days' prior written notice.
Xxxxx Xxxxxx intends to report on the Company from a research perspective
and to continue to make a market in the Company's common stock. However, Xxxxx
Xxxxxx reserves the right in its sole discretion to cease acting as a market
maker or reporting on the Company from a research perspective based upon market
factors in general or the business, financial or other condition of the Company
or market factors affecting the Company. One of the objectives of Xxxxx Xxxxxx'x
financial consulting services, among others, is to cause the investment
community to become aware of the Company's business so that its potential may be
realized in the financial markets.
As compensation for Xxxxx Xxxxxx'x services as a financial advisor, the
Company will issue to Xxxxx Xxxxxx upon execution of this Agreement, warrants to
purchase 200,000 shares of the Company's common stock at $1.50 per share, the
terms and conditions governing such issue of warrants to be substantially in the
form of Appendix B hereto annexed.
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Financial Advisory Agreement-Xxxxx Xxxxxx & ABMC
May 2, 2001
Page 2
It is contemplated that from time to time the Company may request Xxxxx
Xxxxxx to perform investment banking services (as distinguished from financial
consulting services) in connection with matters involving the Company, such as
the private placement of securities, mergers, acquisitions, divestitures,
valuations and corporate reorganizations. Any fees which Xxxxx Xxxxxx shall
become entitled to receive from the Company in connection with the performance
of any such investment banking services shall be set forth in a separate
agreement between the Company and Xxxxx Xxxxxx and shall be in addition to the
compensation provided herein. Neither the Company nor Xxxxx Xxxxxx, however,
will have any obligation to enter into any separate agreement, and if a separate
agreement were to be made, the terms and conditions thereof would have to be
negotiated between Xxxxx Xxxxxx and the Company. Nothing contained in the
Agreement shall preclude the Company from engaging any other party or person to
provide financial advisory or investment banking services to the Company.
In order to enable Xxxxx Xxxxxx to render its services hereunder, the
Company, subject to its obligation under Federal and State Securities laws,
agrees to provide Xxxxx Xxxxxx, among other things, all reasonable information
requested or required by Xxxxx Xxxxxx including, but not limited to, information
concerning historical and projected financial results and possible and known
litigious, environmental and other contingent liabilities. The Company, subject
to its obligations under Federal and State Securities laws, will promptly advise
Xxxxx Xxxxxx of any material changes in its business or finances during the term
of this Agreement. The Company represents that, to the best of its knowledge,
all information made available to Xxxxx Xxxxxx by the Company will be accurate.
In rendering its services hereunder, Xxxxx Xxxxxx will be using and relying
primarily on such information without independent verification thereof or
independent appraisal of any of the Company's assets. Xxxxx Xxxxxx does not
assume responsibility for the accuracy or completeness of the information to
which reference is made hereto and Xxxxx Xxxxxx will hold such information
confidential.
The services herein provided are to be rendered solely to the Company. They
are not being rendered by Xxxxx Xxxxxx as an agent or as a fiduciary of the
shareholder of the Company and Xxxxx Xxxxxx shall not have any liability or
obligation with respect to its services hereunder to such shareholders or any
other person, firm or corporation.
This Agreement sets forth the entire understanding of the parties relating
to the subject matter hereof and supersedes and cancels any prior
communications, understanding and agreements between the parties. This Agreement
cannot be terminated or changed, nor can any of its provisions be waived, except
by written agreement signed by all parties hereto or except as otherwise
provided herein.
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Financial Advisory Agreement-Xxxxx Xxxxxx & ABMC
May 2, 2001
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This Agreement shall be governed by and construed in accordance with the
laws of the State of New York applicable to contracts made and to be performed
solely in such State by citizens thereof. Any dispute arising out of this
Agreement shall be adjudicated in the courts of the State of New York or in the
federal courts sitting in the Southern District of New York and the Company
hereby agrees that service of process upon it by registered or certified mail at
its address set forth above shall be deemed adequate and lawful. The parties
hereto shall deliver notices to each other by personal delivery or by registered
or certified mail (return receipt requested) at the address set forth above, if
to the Company and if the Xxxxx Xxxxxx, Xxxxx Xxxxxx & Co., Inc., ATTN: A. Xxxxx
Xxxxxx, 000 Xxxxxxxxx Xxx, 00xx Xxxxx, Xxx Xxxx, XX 00000.
Very truly yours,
Xxxxx Xxxxxx & Co., Inc.
By:/s/ A. Xxxxx Xxxxxx
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A. Xxxxx Xxxxxx
Chairman and CEO
ACCEPTED AND AGREED TO:
American Bio Medica Corporation
By: /s/ Xxxx Xxxxxxxxx
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Xxxx Xxxxxxxxx
President
Date: May 2, 2001
