EXHIBIT 10.1
FINANCIAL CONSULTING SERVICES AGREEMENT
This Financial Consulting Services Agreement (the "Agreement") is
entered this 21st day of February, 2002 by and between M. Xxxxxx Xxxxx,
Xxxxxxx Xxxxxxxxx and Xxxxxxxx Xxxxxx ("Consultants"), individual's, and
SURGICARE, INC. (AMEX: SRG) ("Client"), a Delaware corporation, with
reference to the following:
PRELIMINARY STATEMENT
A. The Client desires to be assured of the association and services of
the Consultants in order to avail itself of the Consultants experience,
skills, abilities, knowledge, and background to facilitate long range
strategic planning, and to advise the Client in business and/or financial
matters and is therefore willing to engage the Consultants upon the terms and
conditions set forth herein. Consultants desire to be assured, and Client
desires to assure Consultants, that, if Consultants associate with Client and
allocates its resources necessary to provide Client with its services as
Client requires and expects, Consultants will be paid the consideration
described herein and said consideration will be nonrefundable, regardless of
the circumstances.
B. The Consultants agree to be engaged and retained by the Client and
upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing, of the mutual
promises hereinafter set forth and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
1. ENGAGEMENT. Client hereby engages Consultants on a non-exclusive
basis, and Consultants hereby accepts the engagement to become financial
Consultants to the Client and to render such advice, consultation,
information, and services to the Directors and/or Officers of the Client
regarding general financial and business matters including, but not limited
to:
a. Strategic alliances, mergers and acquisitions;
b. Corporate planning, strategy and negotiations with potential
strategic business partners and/or other general business
consulting needs as expressed by Client;
c. Business development and business advertising;
d. E-Consulting providing business solutions;
e. Structuring and providing alternative sources for accounts
receivable, purchase order and other asset financing.
f. Due diligence processes and Capital structures;
g. Periodic reporting as to developments concerning the general
financial markets and public securities markets and industry
which may be relevant or of interest or concern to the Client or
the Client's business.
Notwithstanding anything contained herein to the contrary, it is clearly
understood and agreed to by the parties hereto that the aforementioned
services to be provided by Consultants shall not involve any capital raising
efforts or promotion of the Client's securities. It shall be
Amended-March 27, 2002 Page 1 of 6 (IBSA.S-8)____/SRG____
expressly understood that Consultants shall have no power to bind Client to
any contract or obligation or to transact any business in Client's name or on
behalf of Client in any manner.
It is expressly understood and agreed by Client that, in reliance upon
Client's representations, warranties and covenants contained herein,
immediately upon execution and delivery of this Agreement by Client,
Consultants are setting aside and allocating for the benefit of Client
valuable resources (including, without limitation, capital and reservation of
work schedules of employees) required to fulfill Consultants' obligation
described in paragraph B.1. hereof. In doing so, Consultants agree to
forebear from undertaking other opportunities and commitments (that would
result in enrichment to Consultants) in order to be available to provide
Client the services contemplated by this Agreement.
2. TERM. The term ("Term") of this Agreement shall commence on the date
hereof and continue for twelve (12) months. The Agreement may be extended
upon agreement by both parties, unless or until the Agreement is terminated.
Either party may cancel this Agreement upon five (5) days written notice in
the event either party violates any material provision of this Agreement and
fails to cure such violation within five (5) days of written notification of
such violation from the other party. Such cancellation shall not excuse the
breach or non-performance by the other party or relieve the breaching party
of its obligation incurred prior to the date of cancellation, including,
without limitation, the obligation of Client to pay the nonrefundable
consideration described in paragraph B.4. hereof.
3. DUE DILIGENCE. The Client shall supply and deliver to the
Consultants all information relating to the Client Company's business as may
be reasonably requested by the Consultants to enable the Consultants to make
an assessment of the Client's company and business prospects and provide the
consulting services described in paragraph B.1. hereof.
4. COMPENSATION AND FEES. As consideration for Consultants entering
into this Agreement, Client agrees to pay and deliver to Consultants the
following consideration, which consideration is nonrefundable regardless of
the circumstances:
a. Client shall issue certificates representing an aggregate of fifty-six
thousand (56,000) shares of free trading common stock (the "Shares"),
registered under S-8.
SHARES ARE PAYABLE IN TWO PAYMENTS: The FIRST PAYMENT of thirty-eight
thousand (38,000) shares is due on the date hereof, and the SECOND
PAYMENT of eighteen (18,000) shares is due 90 days after the date
hereof as long as the Agreement has not been terminated by Client for
any reason (regardless of paragraph B.2. above), within the first
eighty (80) days from the date of the Agreement.
b. The Certificates shall be issued to the Consultants in the following
manner for the FIRST PAYMENT:
M. Xxxxxx Xxxxx will receive twelve thousand (12,000) shares.
Xxxxxxx Xxxxxxxxx will receive twelve thousand (12,000) shares.
Amended-March 27, 2002 Page 2 of 6 (IBSA.S-8)____/SRG____
Xxxxxxxx Xxxxxx will receive twelve thousand (12,000) shares.
Xxxxxxxxx Xxxxxx will receive two thousand (2,000) shares.
-AND-
The Certificates shall be issued to the Consultants in the following
manner for the SECOND PAYMENT:
M. Xxxxxx Xxxxx will receive six thousand (6,000) shares.
Xxxxxxx Xxxxxxxxx will receive six thousand (6,000) shares.
Xxxxxxxx Xxxxxx will receive six thousand (6,000) shares.
The Shares, when issued to Consultants, will be duly authorized, validly
issued and outstanding, fully paid and nonassessable and will not be subject
to any liens or encumbrances. Securities shall be issued to Consultants in
accordance with a mutually acceptable plan of issuance as to relieve
securities or Consultants from restrictions upon transferability of shares in
compliance with applicable registration provisions or exemptions.
After careful review and extensive discussions and negotiations between
Client and Consultants and their advisors, Client agrees that, when received
by Consultants, the above-described consideration shall be nonrefundable
regardless of the circumstances, whether foreseen or unforeseen upon
execution and delivery of this Agreement. Client further acknowledges and
agrees that said consideration is earned by Consultants: (1) upon Client's
execution and delivery of the Agreement and prior to the provision of any
service hereunder; (2) in part, by reason of Consultants' agreement to make
its resources available to serve Client and as further described in the
Preliminary Statement and elsewhere herein; and (3) regardless of whether
Client seeks to terminate this Agreement prior to consultants' delivery of
any services hereunder. If Client takes any action to terminate this
Agreement or to recover any consideration paid or delivered by Client to
Consultants other than by reason of Consultants' gross negligence or willful
misconduct, Consultants shall be entitled to all available equitable
remedies, consequential and incidental damages and reasonable attorneys' fees
and costs incurred as a result thereof, regardless of whether suit is filed
and regardless of whether Client or Consultants prevail in any such suit.
5. REPRESENTATIONS, WARRANTS AND COVENANTS. The Client represents,
warrants and covenants to the Consultants as follows:
a. The Client has the full authority, right, power and legal
capacity to enter into this Agreement and to consummate the
transactions which are provided for herein. The execution of this
Agreement by the Client and its delivery to the Consultants, and
the consummation by it of the transactions which are contemplated
herein have been duly approved and authorized by all necessary
action by the Client's Board of Directors and no further
authorization shall be necessary on the part of the Client for the
performance and consummation by the Client of the transactions
which are contemplated by this Agreement.
Amended-March 27, 2002 Page 3 of 6 (IBSA.S-8)____/SRG____
b. The business and operations of the Client have been and are being
conducted in all material respects in accordance with all
applicable laws, rules and regulations of all authorities which
affect the Client or its properties, assets, businesses or
prospects. The performance of this Agreement shall not result in
any breach of, or constitute a default under, or result in the
imposition of any lien or encumbrance upon any property of the
Client or cause an acceleration under any arrangement, agreement
or other instrument to which the Client is a party or by which any
of its assets are bound. The Client has performed in all respects
all of its obligations which are, as of the date of this Agreement,
required to be performed by it pursuant to the terms of any such
agreement, contract or commitment.
6. EXCLUSIVITY; PERFORMANCE; CONFIDENTIALITY. The services of
Consultants hereunder shall not be exclusive, and Consultants and its agents
may perform similar or different services for other persons or entities
whether or not they are competitors of Client. The Consultants agree that it
will, at all times, faithfully and in a professional manner perform all of
the duties that may be reasonably required of the Consultants pursuant to the
terms of this Agreement. Consultants shall be required to expend only such
time as is necessary to service Client in a commercially reasonable manner.
The Consultants does not guarantee that its efforts will have any impact upon
the Client's business or that there will be any specific result or
improvement from the Consultants' efforts. Consultants acknowledges and agree
that confidential and valuable information proprietary to Client and obtained
during its engagement by the Client, shall not be, directly or indirectly,
disclosed without the prior express written consent of the Client, unless and
until such information is otherwise known to the public generally or is not
otherwise secret and confidential.
7. INDEPENDENT CONTRACTOR. In its performance hereunder, Consultants
and its agents shall be an independent contractor. Consultants shall complete
the services required hereunder according to his own means and methods of
work, shall be in the exclusive charge and control of Consultants and which
shall not be subject to the control or supervision of Client, except as to
the results of the work. Client acknowledges that nothing in this Agreement
shall be construed to require Consultants to provide services to Client at
any specific time, or in any specific place or manner. Payments to consultant
hereunder shall not be subject to withholding taxes or other employment taxes
as required with respect to compensation paid to an employee.
8. ARBITRATION AND FEES. Any controversy or claim arising out of or
relating to this Agreement, or breach thereof, may be resolved by mutual
agreement; or if not, shall be settled in accordance with the Arbitration
rules of the American Arbitration Association in Irvine, California. Any
decision issued therefrom shall be binding upon the parties and shall be
enforceable as a judgment in any court of competent jurisdiction. The
prevailing party in such arbitration or other proceeding shall be entitled,
in addition to such other relief as many be granted, to a reasonable sum as
and for attorney's fees in such arbitration or other proceeding which may be
determined by the arbitrator or other officer in such proceeding. If
collection is required for any payment not made when due, the creditor shall
collect statutory interest and the cost of collection, including attorney's
fees whether or not court action is required for
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enforcement. The prevailing party in any such proceeding shall also be
entitled to reasonable attorneys' fees and costs in connection all appeals of
any judgment.
9. NOTICES. Any notice or other communication required or permitted
hereunder must be in writing and sent by either (i) certified mail, postage
prepaid, return receipt requested and First Class mail; or (ii) overnight
delivery with confirmation of delivery; or (iii) facsimile transmission with
an original mailed by first class mail, postage prepaid, addressed as follows:
If to the Client: SURGICARE, INC.
Attention: Xxxxxx X. Xxxx
00000 Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
If to Consultant: Attention: M. Xxxxxx Xxxxx
00000 Xxxxxxx Xxxxxxx
Xxxx Xxxxx, XX 00000
Facsimile No: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxxx
0000 Xxxx Xxxxxx, Xxxxx #0000
Xxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxxx Xxxxxx
0000 Xxxx Xxxxxx, Xxxxx #0000
Xxxxxx, XX 00000
Facsimile No.: (000) 000-0000
or in each case to such other address and facsimile number as shall have last
been furnished by like notice. If mailing is impossible due to an absence of
postal service, and other methods of sending notice are not otherwise
available, notice shall be hand-delivered to the aforesaid addresses. Each
notice or communication shall be deemed to have been given as of the date so
mailed or delivered, as the case may be; provided, however, that any notice
sent by facsimile shall be deemed to have been given as of the date sent by
facsimile if a copy of such notice is also mailed by first class mail on the
date sent by facsimile; if the date of mailing is not the same as the date of
sending by facsimile, then the date of mailing by first class mail shall be
deemed to be the date upon which notice given.
10. ADDITIONAL PROVISIONS. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other provision
and no waiver shall constitute a continuing waiver. No waiver shall be
binding unless executed in writing by the party making the waiver. No
supplement, modification, or amendment of this Agreement shall be binding
unless executed in writing by all parties. This Agreement constitutes the
entire agreement between the parties and supersedes any prior agreements or
negotiations. There are no third party
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beneficiaries of this Agreement. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of California,
regardless of laws of conflicts.
11. COUNTERPARTS. This Agreement may be executed simultaneously in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
12. PRELIMINARY STATEMENT. The Preliminary Statement is incorporated
herein by this reference and made a material part of this Agreement.
IN WITNESS WHEREOF, the parties hereto have entered into this Agreement
on the date first written above.
"CLIENT"
SURGICARE, INC.
Signature: //s// XXXXXX X. XXXX
-------------------------------------
Print name: Xxxxxx X. Xxxx
Print title: CFO
"CONSULTANTS"
Signature: //s// M. XXXXXX XXXXX
-------------------------------------
Print name: M. Xxxxxx Xxxxx
Print title: Consultant
Signature: //s// XXXXXXX XXXXXXXXX
-------------------------------------
Print name: Xxxxxxx Xxxxxxxxx
Print title: Consultant
Signature: //s// XXXXXXXX XXXXXX
-------------------------------------
Print name: Xxxxxxxx Xxxxxx
Print title: Consultant
Amended-March 27, 2002 Page 6 of 6 (IBSA.S-8)____/SRG____
