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MEDICAL DEVICE ALLIANCE INC.
EXHIBIT 10.09
LEGAL CONSULTING
AGREEMENT
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EXECUTION ORIGINAL
MEDICAL DEVICE ALLIANCE, INC.
LEGAL CONSULTING AGREEMENT
This MEDICAL DEVICE ALLIANCE, INC. LEGAL CONSULTING AGREEMENT (the
"Agreement") is entered into on the 1st day of April 1998 by and between Medical
Device Alliance, Inc., a Nevada corporation and/or its subsidiaries (the
"Company") and Nida & Xxxxxxx, P.C. ("Counsel").
WHEREAS
A. Counsel has agreed to provide legal services to the Company pursuant
to that certain letter dated July 18, 1997 (the "Engagement Letter");
B. The Company wishes to continue to retain Counsel as its primary legal
counsel on corporate and securities matters pursuant to the terms of the
Engagement Letter;
C. The Company would like through this Agreement to provide for certain
access to Counsel on terms not provided for in the Engagement Letter; and
D. The parties wish to amend the Engagement Letter to the extent
provided herein and to set such other terms and conditions as may be appropriate
to Counsel's work for the Company.
NOW, THEREFORE, in consideration of the premises and of the mutual
promises, warranties and representations herein contained, the parties agree as
follows:
1. REAFFIRMATION OF ENGAGEMENT. The Company hereby reaffirms its
engagement of Counsel and Counsel hereby reaffirms its acceptance of its
engagement as counsel to the Company as provided in the Engagement Letter. It is
understood and agreed, and it is the express intention of the parties to this
Agreement, that Counsel is an independent contractor, and not an employee of the
Company for any purpose whatsoever. Counsel agrees to be available at such times
as Counsel and the Company may mutually agree.
2. CONSULTING SERVICES. Commencing on the Effective Date hereof,
and, subject to ethical and legal requirements, until the end of the consulting
period set forth in Exhibit A (the "Consulting Period"), Counsel will make its
attorneys available to the Company for no less than five hours per week, either
at the Company's offices or at Counsel's offices to provide general business,
corporate and securities legal advice (the "Consulting Services"). In
consideration of such services and in lieu of payment therefore pursuant to the
Engagement Letter, the Company shall pay Counsel as provided in Section 3.
3. COMPENSATION. Counsel shall be paid in full for the Consulting
Services through grant of a Medical Device Alliance, Inc. Consulting Fee Warrant
in the form of Exhibit B attached hereto, plus any costs or disbursements
incurred or paid by Counsel in the performance of the Consulting Services,
pursuant to the terms of the Engagement Letter. All applicable federal, state
and local taxes due on all consideration paid to Consultant for Consulting
Services shall be the sole responsibility of Counsel.
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4. TERMINATION. Unless otherwise terminated as provided herein,
either party may terminate this Agreement at any time by giving written notice
to the other party.
5. REMEDIES. In the event of a dispute hereunder, the matter will
be resolved as provided in the Engagement Letter.
6. LAW; SEVERABILITY. This Agreement shall be construed in
accordance with and governed for all purposes by the laws of the State of
California and each party expressly consents to the personal jurisdiction of the
state and federal courts located in California. In case any one or more of the
provisions contained in this Agreement shall, for any reason, be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Agreement, but
this Agreement shall be construed as if such invalid, illegal or unenforceable
provisions were not contained herein.
7. ATTORNEY'S FEES. In the event any action or proceeding is
brought to enforce this Agreement, the prevailing party shall be entitled to its
costs of such proceeding, including reasonable attorney's fees.
8. NOTICES. All notices shall be deemed to be received when
delivered in person or by facsimile, or on the third business day after the date
on which such notice was mailed, postage prepaid, to the party for whom intended
at the address given by such party on the signature page hereof, or at such
other address as is designated in writing by the parties hereto.
9. ENTIRE AGREEMENT; BINDING EFFECT. This Agreement together with
the Engagement Letter, contains the entire understanding of the parties and
cannot be altered or amended, except by a written amendment duly executed by the
parties. This Agreement shall be binding upon and inure to the benefit of the
Company and Counsel and their respective successors and assigns.
[Signature page to follow.]
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IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the date written above.
Company: Counsel:
MEDICAL DEVICE ALLIANCE, INC. NIDA & XXXXXXX, P.C.
By: /S/ Xxxxx Xxxxxxx By: /s/ C. Xxxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx Name: C. Xxxxxx Xxxxxxx
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Title: Corporate Secretary Title: Vice President
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Address: 0000 Xxxxxx Xxxxxx Xxxxxxx, Address: 000 Xxxxxxx Xxxxxx
Xxx. 0000 Xxxxx Xxxxxxx, XX 00000
Xxx Xxxxx, XX 00000
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
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EXHIBIT A
Consulting Period: April 1, 1998 through March 31, 1999.
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EXHIBIT B
MEDICAL DEVICE ALLIANCE, INC.
LEGAL CONSULTING FEE WARRANT
This MEDICAL DEVICE ALLIANCE, INC. LEGAL CONSULTING FEE WARRANT (the
"Warrant") is made and entered into at Carpinteria, California, on the date of
issuance set forth on the signature page hereof by and between Medical Device
Alliance, Inc., a Nevada corporation (the "Company") and the undersigned (the
"Holder").
WHEREAS
A. The Holder has contemporaneously entered into a Legal Consulting
Agreement with the Company (the "Agreement"); and
B. The Company has, as incentive to the Holder to perform the Holder's
consulting services, agreed to grant to the Holder this Warrant entitling the
Holder to acquire Thirty Thousand (30,000) shares of Medical Device Alliance,
Inc. Common Stock (the "Warrant Shares") at the Strike Price defined below,
subject to the terms and vesting upon the dates set forth below.
NOW, THEREFORE, in consideration of the premises and of the mutual
promises, warranties and representations herein contained, the parties agree as
follows:
1. WARRANT. Subject to the conditions set forth herein, the Company
hereby grants to the Holder the right, privilege and option to purchase up to
Thirty Thousand (30,000) shares of Common Stock (the "Warrant Shares") at the
Strike Price per share set forth below, said number of Warrant Shares and said
Strike Price being subject to adjustment as provided herein. No fractional
Warrant Shares will be issued.
2. VESTING. Subject to the continuation of the Agreement, the Warrants
will vest and the shares underlying the Warrants will be available for purchase,
in the following manner: One twelfth (1/12) of the total Warrants will vest
monthly on the last day of each calendar month during the Consulting Period
Neither the Warrant nor any part of the Warrant will be available for exercise
at the Strike Price prior to the vesting dates above. Termination of the
Agreement also terminates the vesting of the Warrants.
3. STRIKE PRICE. The exercise price per share for the Warrant Shares
(the "Strike Price") shall be Seven Dollars ($7.00) per share.
4. METHOD OF EXERCISE. Stock purchased under this Warrant shall, at the
time of purchase, be paid for in full. The right to purchase shares hereunder
may be exercised, from time to time after the vesting dates specified in Section
2 above, by written notice to the Company stating the number of shares of Common
Stock with respect to which this Warrant is being exercised and the time of
delivery thereof, which shall be at least ten (10) days after the giving of such
notice, unless an earlier date shall have been mutually agreed upon. At the time
specified in such notice, the Company shall, without transfer or issue tax to
the Holder, deliver to the Holder by certified mail, a certificate or
certificates for the number of shares of Common Stock with respect to which this
Warrant is being exercised, against (i) the payment of the Strike Price, in
full, for the number of
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shares to be delivered, by certified or bank cashier's check, or the equivalent
thereof acceptable to the Company or (ii) notice by Holder that Holder wishes to
exercise the Warrant in a cashless exercise pursuant to which Holder shall be
entitled to receive a net issuance of shares of Common Stock equal to the
quotient obtained by dividing (a) the value of the Warrant which is being
exercised (determined by subtracting the aggregate Warrant exercise price for
the Warrant Shares for which the Warrant is being exercised at the time of
exercise from the aggregate fair market value of the same number of Warrant
Shares (measured as the last sale price of the Common Stock on the date of
exercise) by (b) the fair market value of one share of Common Stock; provided,
however, that the time of such delivery may be postponed by the Company for such
period as may be required for it, with reasonable diligence, to comply with any
requirements of any state or federal agency or any securities exchange; and
provided further that no fractional shares of Common Stock will be issued. If
the Holder fails to accept delivery of and pay for all or any part of the number
of shares of Common Stock specified in the notice given by the Holder, upon
tender and delivery of said shares, the Holder's right to exercise this Warrant
with respect to such undelivered shares shall be terminated. As a condition of
the exercise of the Warrant, the Company may require the Holder to make such
investment representation(s) or other representation(s) to the Company as the
Company may deem to be necessary or appropriate under any applicable law or
regulation.
5. TERMINATION OF WARRANT. Except as herein otherwise stated, the
Warrant, to the extent not theretofore exercised, shall terminate at 5:00 p.m.
Pacific Standard Time on _____________, ______, the Seventh (7th) anniversary of
the issuance date hereof.
6. RECLASSIFICATION, CONSOLIDATION OR MERGER. If, and to the extent that
the number of issued shares of Common Stock of the Company shall be increased or
reduced by change in par value, subdivision, combination, split-up,
reclassification, distribution of a dividend payable in stock, or the like (but
excluding dividends payable in cash), the number of Warrant Shares subject to
this Warrant, and the Strike Price therefor, shall be proportionately adjusted.
Subject to the terms of any agreement and plan or merger or reorganization, if
the Company is reorganized or consolidated, or merged with any other
corporation, the Holder shall be entitled to receive warrants covering shares of
Common Stock of such reorganized, consolidated or merged Company in the same
proportion, at an equivalent aggregate exercise price, and subject to the same
conditions as holders of similar derivative securities of the Company.
7. RIGHTS PRIOR TO EXERCISE OF WARRANT. The Holder shall have no rights
as a shareholder of shares subject to this Warrant until payment of the Strike
Price and the delivery of the Warrant Shares upon such exercise as herein
provided.
8. CERTAIN COVENANTS OF THE COMPANY. The Company covenants and agrees
that all shares which may be issued upon the exercise of this Warrant, will,
upon issuance, be duly and validly issued, fully paid and nonassessable; and
will from time to time take all such action as may be requisite to assure that
the par value per share of the Common Stock is at all times equal to or less
than the then effective purchase price per share of the Common Stock issuable
pursuant to this Warrant. The Company further covenants and agrees that, during
the period within which the rights represented by this Warrant may be exercised,
the Company will at all times have authorized, and reserved for the purpose of
issuance upon exercise of the purchase rights evidenced by this Warrant, a
sufficient number of shares of its Common Stock to provide for the exercise of
the rights
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represented by this Warrant. The Company also further covenants that it will
not, by amendment of its Certificate or Articles of Incorporation or through any
reorganization, transfer of assets, consolidation, merger, dissolution, issuance
or sale of securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms of this Warrant, but will at all
times in good faith assist in the carrying out of all such terms and in the
taking of all such action as may be necessary or appropriate in order to protect
the rights of the holder of this Warrant against impairment. Without limiting
the generality of the foregoing, the Company (a) will not increase the par value
of any shares of stock issuable upon the exercise of this Warrant above the
amount payable therefor on such exercise, and (b) will take all action that may
be necessary or appropriate in order that the Company may validly and legally
issue fully paid and nonassessable shares of stock on the exercise of this
Warrant.
9. TRANSFER OF WARRANT. This Warrant may not be transferred by the
Holder without the prior written consent of the Company; provided, however, that
the Warrant and the Common Stock issuable upon conversion thereof may be
transferred or distributed to shareholders of Holder.
10. REGISTRATION RIGHTS. The Holder shall have such registration rights
for the shares of Common Stock issuable upon exercise of this Warrant as the
Company shall have granted or shall hereafter grant to any other consultant or
investor, on a most-favored-nation basis.
12. UNDERSTANDING OF HOLDER. Unless otherwise registered pursuant to
Section 11, the Company's obligation to issue the Warrant Shares as set forth
herein shall be conditioned upon a timely receipt by the Company in writing of
investment representations as deemed appropriate by the Company in its sole and
absolute discretion sufficient to assure the Company that the Warrant Shares
upon issuance will be exempt from registration under the Securities Act of 1933,
as amended.
13. BINDING EFFECT. This Warrant shall be binding upon and inure to the
benefit of the heirs, executors, administrators and successors of the parties
hereto.
14. GOVERNING LAW. This Warrant shall be governed by, and construed and
enforced in accordance with, the law of the State of California.
15. NOTICES. Any notice or demand to the Company under this Warrant may
be given and shall conclusively be deemed and considered to have been given and
received upon the date shown to have been received on any postal receipt or
independent courier receipt at the address of the Company appearing on the
records of the Holder, but actual written notice (including by telefax, hand
delivery, Federal Express, or other means), however given or received, shall
always be effective. For the purposes hereof, the addresses of the Company and
the Holder (until notice of a change thereof is given as provided in this
Section 15) shall be as follows:
If to the Holder: At the address set forth on the signature
page hereof
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If to the Company: Medical Device Alliance, Inc.
0000 Xxxxxx Xxxxxx Xxxxxxx, Xxx. 0000
Xxx Xxxxx, XX 00000
Attn: Treasurer
16. EXECUTION IN COUNTERPARTS. This Warrant may be executed in any
number of counterparts and any party hereto or thereto may execute any
counterpart, each of which when executed and delivered will be deemed to be an
original and all of which counterparts of this Warrant taken together will be
deemed to be but one and the same instrument. The execution of this Warrant by
any party hereto will not become effective until counterparts hereof or thereof,
as the case may be, have been executed by all the parties hereto or thereto, and
transmitted by facsimile copy with overnight delivery of manually executed
copies. Notwithstanding the above, the date of issuance of this Warrant shall be
the date which is specifically indicated on the signature page hereof.
IN WITNESS WHEREOF, the parties have caused this Legal Consulting Fee
Warrant to be executed as of the ___ day of ________, 1998.
"Company" The "Holder"
MEDICAL DEVICE ALLIANCE, INC., NIDA & XXXXXXX, P.C.
a Nevada corporation
By: ___________________________ By: _______________________________
Its: Its:
Address: 000 Xxxxxxx Xxxxxx
Xxxxx Xxxxxxx, XX 00000
___________________________________
Tax Id. #: 000000000
DATE OF ISSUANCE OF WARRANT:
NUMBER OF WARRANT SHARES INITIALLY SUBJECT OF WARRANT:
THIRTY THOUSAND (30,000)
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