AMENDMENT TO AND RESTATEMENT OF
THE
AMENDED AND RESTATED
CONSULTING AGREEMENT
BY AND AMONG
MEDCROSS, INC.
KALO ACQUISITIONS, L.L.C.
AND
XXXXX X. XXXXXX
THIS AMENDMENT TO AND RESTATEMENT OF THE AMENDED AND
RESTATED CONSULTING AGREEMENT, which became effective as of the 18th
day of October, 1995, is effective as of this 4th day of March, 1996
(the "Agreement") by and among Medcross, Inc., a Florida
corporation with principal offices at 0000 Xxxxxx Xxxxxx Xxxxx,
Xx. Xxxxxxxxxx, Xxxxxxx 00000 (the "Corporation"), Xxxxx X.
Xxxxxx (hereinafter referred to as "Xxxxxx" or the "Consultant"
as the context may require) and Kalo Acquisitions, L.L.C., a
Delaware limited liability Corporation with principal offices at
000 XXX Xxxxx, Xxxx Xxxxx, Xxxxx 000, Xxxxxxxxx, Xxx Xxxx
00000-0000 ("Kalo").
WHEREAS, Kalo, through its manager and employees has
developed expertise in and is in the business of providing
consulting services, including finding and assessing acquisition
candidates and providing investor and public relations services;
WHEREAS, Xxxxxx is the manager and an employee of Kalo, and
has expertise in the area of providing consulting services,
including finding and assessing acquisition candidates and
providing investor and public relations services;
WHEREAS, the Corporation desires to engage Xxxxxx to provide
services to the Corporation as set forth below, upon the terms
and subject to the conditions set forth herein;
WHEREAS, Xxxxxx desires to provide services to the
Corporation as set forth below, upon the terms and subject to the
conditions set forth herein;
WHEREAS, Kalo, Xxxxxx and the Corporation have agreed that
Xxxxxx shall render the services set forth below to the
Corporation upon the terms and subject to the conditions set
forth herein; and
WHEREAS, Kalo has agreed to provide Xxxxxx the opportunity
to avail himself of Kalo's resources including, without
limitation, use of any phone lines, computers, photocopiers,
facsimile machines, postage meters and other supplies in exchange
for Xxxxxx'x reimbursement to Kalo of the costs of the same.
NOW, THEREFORE, in consideration of the foregoing and for
such other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Engagement. The Corporation hereby engages the Consultant
to render to it for a period of three (3) years commencing
February 1, 1996 (the "Term") the investor and public
relations services described herein. The Term hereof may be
renewed upon the written agreement of the Corporation, Kalo
and the Consultant entered into prior to expiration of the
initial Term hereof on such terms as the parties hereto may
negotiate at the time of such renewal.
2. Services. For the Term of this Agreement, the Consultant
shall perform the following services for the Corporation:
(a) Assist the Corporation in locating, assessing and
implementing the acquisition by the Corporation, by way
of private or open market purchases of stock, purchase
of assets, merger, tender offer, joint venture or
otherwise, the acquisition by the Corporation of one or
more businesses, divisions or other operating entities
and/or assets, including without limitation thereto
Image Trust, consistent with the directives of the
Corporation;
(b) Prepare and distribute, with the Corporation's prior
approval, due-diligence packages for the brokerage
community which would include presentation folders,
press release sheets and a Corporation overview
pamphlet;
(c) Prepare and distribute, with the Corporation's prior
approval, investor relations packages;
(d) Coordinate broker presentations to be held a minimum of
four (4) times per year;
(e) Prepare and disseminate, with the Corporation's prior
approval, information about the Corporation to
investors;
(f) Present and introduce the Corporation to
broker/dealers, fund managers and analysts on a
continual basis;
(g) Prepare and disseminate, with the Corporation's prior
approval, press releases in compliance with any
applicable regulatory guidelines to wire/news services;
(h) Disseminate for informational purposes the
Corporation's publicly filed materials, including the
Corporation's Annual and Quarterly Reports on Form
10-KSB and Form 10-QSB, respectively, to investors;
(i) Assist with the set up of annual and special
shareholder meetings;
(j) Perform such other services as may be reasonably
requested from time to time by the officers of the
Corporation;
(k) Reimburse Kalo for its costs related to the use of any
of its resources as contemplated herein; and
(l) Bear all costs and expenses relating to any of the
foregoing.
3. Compensation. In consideration for the performance of the
services described above, the Corporation shall issue to the
Consultant an option exercisable to purchase an aggregate of
up to one hundred fifty thousand (150,000) shares of its
common stock, par value $.007 per share (the "Common
Stock"), which option (the "Option") shall be exercisable as
set forth below and shall expire on January 31, 1999:
(a) commencing on February 1, 1996, the Option shall become
exercisable to purchase up to fifty thousand (50,000)
shares of Common Stock at an exercise price of one
dollar and fifty cents ($1.50) per share;
(b) commencing on February 1, 1997, the Option shall become
exercisable to purchase an additional fifty thousand
(50,000) shares of Common Stock at an exercise price of
two dollars and fifty cents ($2.50) per share; and
(c) commencing on February 1, 1998, the Option shall become
exercisable to purchase an additional fifty thousand
(50,000) shares of Common Stock at an exercise price of
three dollars and fifty cents ($3.50) per share.
4. Registration Rights. The Corporation shall file,
contemporaneously with or as soon as practicable after
execution hereof, a registration statement relating to the
shares of Common Stock issuable pursuant hereto on Form S-8
with the Securities and Exchange Commission (the
"Commission") pursuant to the Securities Act of 1933 (the
"Act"). In the event that, for any reason whatsoever, such
Form S-8 is not available for use by the Corporation, the
Corporation shall file such form of registration statement
as is available for use by the Corporation as specified or
otherwise permitted by the Act and the rules and regulations
promulgated thereunder. The Corporation shall bear the
expenses of such registration and shall: (a) provide any
requisite prospectuses meeting the requirements of the Act
and such other documents as the Consultant may reasonably
request for a period of at least twelve (12) months
following expiration of the Option in order to facilitate
the sale or other disposition of such securities;
(b) register and qualify for sale any of such securities in
such states as the Consultant may reasonably designate; and
(c) do any and all other acts and things which may be
necessary or desirable to enable the Consultant to
consummate the sale or other disposition of such securities.
The Consultant hereby acknowledges that it understands that:
(a) neither the Option nor the shares of Common Stock
issuable upon exercise thereof have previously been the
subject of registration under the Act or any applicable
state securities laws;
(b) the Consultant may not sell or otherwise transfer the
Option or the shares of Common Stock issuable upon
exercise of the Option unless such securities are
subject to an effective registration statement under
the Act and any applicable state securities laws
(unless exemptions from such registration requirements
are available);
(c) in the event that any shares of Common Stock issuable
pursuant to exercise of the Option are issued at a time
during which a registration statement relating to the
same is not effective, until such shares of Common
Stock are subject to an effective registration
statement under the Act, a legend will be placed on any
certificate or certificates evidencing the same
indicating that the transfer of such securities has not
been registered under the Act and setting forth or
referring to the restrictions on transferability and
sales of such securities; and
(d) the Corporation will place stop transfer instructions
against the certificate or certificates evidencing the
securities issuable pursuant hereto to restrict the
transfer thereof.
5. Representations and Warranties. The Consultant hereby
represents and warrants that:
(a) the Consultant will not sell or otherwise transfer the
Option or the shares of Common Stock issuable upon
exercise of the Option without compliance with the Act
and any applicable state securities laws;
(b) the Consultant has received and carefully read the
following: (i) the Corporation's Annual Report on Form
10-KSB for the period ended December 31, 1994 (File No.
0-17973); (ii) the Corporation's Quarterly Reports on
Form 10-QSB for the periods ended March 31, 1995,
June 30, 1995 and September 30, 1995 (File No.
0-17973); and (iii) written or verbal responses for all
questions the Consultant has submitted to the
Corporation regarding its acquisition of the securities
described herein, all of which the Consultant
acknowledges have been provided to the Consultant (the
"Corporate Materials"). The Consultant has not been
furnished with any other materials or literature
relating to the acquisition of the securities described
herein, other than the Corporate Materials. The
Consultant has been given the opportunity to ask
questions of and to receive answers from the
Corporation concerning the terms and conditions of the
acquisition of the securities described herein and the
Corporate Materials, and to obtain such additional
written information necessary to verify the accuracy of
same as the Consultant desires in order to evaluate the
acquisition of and investment in the securities
described herein. The Consultant acknowledges and
confirms that the written and/or verbal responses
provided to the Consultant by the Corporation in
response to the Consultant's questions are not contrary
to or inconsistent with, nor do they in any way
conflict with the information set forth in the
Corporate Materials. The Consultant further
acknowledges that it fully understands the information
contained in the Corporate Materials and the Consultant
has had the opportunity to discuss any questions
regarding the Corporate Materials with its counsel or
other advisor. Notwithstanding the foregoing, the only
information upon which the Consultant has relied is
that set forth in the Corporate Materials and that
derived by its own independent investigation. The
Consultant acknowledges that the Consultant has
received no representations or warranties from the
Corporation or its employees or agents in making an
investment decision related to the acquisition of the
securities described herein, other than as set forth
herein;
(c) the Consultant is aware that the acquisition of the
securities described herein is a speculative investment
involving a high degree of risk and that there is no
guarantee that the Consultant will realize any gain
from its acquisition of or investment in such
securities. The Consultant has specifically reviewed
the Corporate Materials with a view toward acquiring
the securities described herein;
(d) the Consultant understands that no federal or state
agency or other authority: (i) has made any finding or
determination regarding the fairness of the
transactions described herein, (ii) has made any
recommendation or endorsement of the transactions
described herein, or (iii) has passed in any way upon
this agreement or the Corporate Materials;
(e) the Consultant: (i) is acquiring the securities
described herein solely for his own account for
investment purposes only and not with a view toward
resale or distribution thereof, either in whole or in
part; and (ii) has no contract, undertaking, agreement
or other arrangement, in existence or contemplated, to
sell, pledge, assign or otherwise transfer the
securities to any other person;
(f) the Consultant has adequate means of providing for his
current needs and contingencies and has no need for
liquidity in the investment in the securities described
herein. The Consultant has read, is familiar with and
understands Rule 501 of Regulation D and represents
that he is an "accredited investor" as defined in Rule
501(a) of Regulation D under the Act. The Consultant
has no reason to anticipate any material change in his
financial condition for the foreseeable future;
(g) the Consultant is financially able to bear the economic
risk of an investment in the securities described
herein, including the ability to hold such securities
indefinitely and to afford a complete loss of an
investment in such securities;
(h) the Consultant's overall commitment to investments
which are not readily marketable is not
disproportionate to the Consultant's net worth, and the
Consultant's investment in the securities described
herein will not cause such overall commitment to become
excessive. The Consultant understands that the
statutory basis on which such securities are being
issued to the Consultant would not be available if the
Consultant's present intention were to hold such
securities for a fixed period of time or until the
occurrence of a certain event. The Consultant realizes
that, in the view of the Commission, the acquisition of
such securities now with a present intention to resell
by reason of a foreseeable specific contingency or any
anticipated change in the market value of such
securities, or in the condition of the Corporation or
that of the industry in which the business of the
Corporation is engaged or in connection with a
contemplated liquidation, would, in fact, constitute an
acquisition and/or purchase with an intention
inconsistent with the Consultant's representations to
the Corporation and the Commission would then regard
such purchase as a purchase for which the exemption
from registration under the Act relied upon by the
Corporation in connection herewith is not available;
and
(i) the Consultant has such knowledge and experience in
financial and business matters as to be capable of
evaluating the merits and risks of the acquisition of
and an investment in the securities described herein.
6. Confidential Information. The parties hereto recognize that
it is fundamental to the business and operation of the
Corporation, its subsidiaries, affiliates and divisions
thereof to preserve the specialized knowledge, trade
secrets, and confidential information of the foregoing
entities. The strength and good will of the Corporation is
derived from the specialized knowledge, trade secrets, and
confidential information generated from experience through
the activities undertaken by the Corporation, its
subsidiaries, affiliates and divisions thereof. The
disclosure of any of such information and the knowledge
thereof on the part of competitors would be beneficial to
such competitors and detrimental to the Corporation, its
subsidiaries, affiliates and divisions thereof, as would the
disclosure of information about the marketing practices,
pricing practices, costs, profit margins, design
specifications, analytical techniques, concepts, ideas,
process developments (whether or not patentable), customer
and client agreements, vendor and supplier agreements and
similar items or technologies. By reason of performance
under this Agreement, the Consultant may have access to and
may obtain specialized knowledge, trade secrets and
confidential information such as that described herein about
the business and operation of the Corporation, its
subsidiaries, affiliates and divisions thereof. Therefore,
the Consultant hereby agrees that he shall keep secret and
retain in confidence and shall not use, disclose to others,
or publish, other than in connection with the performance of
services hereunder, any information relating to the
business, operation or other affairs of the Corporation, its
subsidiaries, affiliates and divisions thereof, including
but not limited to, confidential information concerning the
marketing practices, pricing practices, costs, profit
margins, products, methods, guidelines, procedures,
engineering designs and standards, design specifications,
analytical techniques, technical information, customer,
client, vendor or supplier information, employee
information, or other confidential information acquired by
each of them in the course of providing services for the
Corporation. The Consultant agrees to hold as the
Corporation's property all notes, memoranda, books, records,
papers, letters, formulas and other data and all copies
thereof and therefrom in any way relating to the business or
operation of the Corporation, its subsidiaries, affiliates
and divisions thereof, whether made by the Corporation or
the Consultant or as may otherwise come into the possession
of the Consultant. Upon termination of this Agreement or
upon the demand of the Corporation, at any time, the
Consultant shall deliver the same to the Corporation within
twenty-four (24) hours of such termination or demand.
7. Reformation. In the event that a court of competent
jurisdiction determines that the confidentiality provisions
or part of a provision hereof are unreasonably broad or
otherwise unenforceable because of the length of their
respective terms or the breadth of their territorial scope,
or for any other reason, the parties hereto agree that such
court may reform the terms and/or scope of such covenants so
that the same are reasonable and, as reformed, shall be
enforceable.
8. Applicable Law. This Agreement shall be construed and
enforced in accordance with the laws of the State of Florida
without regard to the principles of conflicts of laws
thereof and shall inure to the benefit of and be binding
upon Kalo, the Consultant and the Corporation and their
respective legal successors and assigns.
9. Remedies. In the event of a breach of any of the provisions
of this Agreement, the non-breaching party shall provide
written notice of such breach to the breaching party. The
breaching party shall have thirty (30) days after receipt of
such notice in which to cure its breach. If, on the
thirty-first (31st) day after receipt of such notice, the
breaching party shall have failed to cure such breach, the
non-breaching party thereafter shall be entitled to seek
damages. It is acknowledged that this Agreement is of a
unique nature and of extraordinary value and of such a
character that a breach hereof by the Consultant or the
Corporation shall result in irreparable damage and injury
for which the non-breaching party may not have any adequate
remedy at law. Therefore, if, on the thirty-first (31st)
day after receipt of such notice, the breaching party shall
have failed to cure such breach, the non-breaching party
shall also be entitled to seek a decree of specific
performance against the breaching party, or such other
relief by way of restraining order, injunction or otherwise
as may be appropriate to ensure compliance with this
Agreement. The remedies provided by this section are
non-exclusive and the pursuit of such remedies shall not in
any way limit any other remedy available to the parties with
respect to this Agreement, including, without limitation,
any remedy available at law or equity with respect to any
anticipatory or threatened breach of the provisions hereof.
10. No Continuing Waiver. The waiver by any party of any
provision or breach of this Agreement shall not operate as
or be construed to be a waiver of any other provision hereof
or of any other breach of any provision hereof.
11. Notice. Any and all notices from either party to the other
which may be specified by, or otherwise deemed necessary or
incident to this Agreement shall, in the absence of hand
delivery with return receipt requested, be deemed duly given
when mailed if the same shall be sent to the address of the
party set out on the first page of this Agreement by
registered or certified mail, return receipt requested, or
express delivery (e.g., Federal Express).
12. Severability of Provisions. The provisions of this
Agreement shall be considered severable in the event that
any of such provisions are held by a court of competent
jurisdiction to be invalid, void or otherwise unenforceable.
Such invalid, void or otherwise unenforceable provisions
shall be automatically replaced by other provisions which
are valid and enforceable and which are as similar as
possible in term and intent to those provisions deemed to be
invalid, void or otherwise unenforceable. Notwithstanding
the foregoing, the remaining provisions hereof shall remain
enforceable to the fullest extent permitted by law.
13. Assignability. This Agreement shall not be assignable
without the prior written consent of the non-assigning party
or parties hereto and shall be binding upon and inure to the
benefit of any heirs, executors, legal representatives or
successors or permitted assigns of the parties hereto.
14. Entire Agreement; Amendment. This Agreement contains the
entire agreement among the Corporation, Kalo and the
Consultant with respect to the subject matter hereof. This
Agreement may not be amended, changed, modified or
discharged, nor may any provision hereof be waived, except
by an instrument in writing executed by or on behalf of the
party against whom enforcement of any amendment, waiver,
change, modification or discharge is sought. No course of
conduct or dealing shall be construed to modify, amend or
otherwise affect any of the provisions hereof.
15. Headings. The paragraph headings contained in this
Agreement are for reference purposes only and shall not in
any way affect the meaning or interpretation of the
provisions of this Agreement.
16. Termination. The Corporation may terminate this Agreement
with or without cause at any time upon delivery of thirty
(30) days prior written notice to the other parties hereto.
Any such termination shall result in the termination of the
Consultant's respective rights to receive any further
compensation, except with respect to accrued compensation
which Consultant shall have the right to receive
notwithstanding termination hereof.
17. Survival. Sections 5, 6, 7, 8, 11 and 12 shall survive the
termination for any reason of this Agreement (whether such
termination is by the Corporation, upon the expiration of
this Agreement by its terms or otherwise).
* * * * *
IN WITNESS WHEREOF, the parties have caused this Agreement
for Consulting Services to be executed and delivered by their
duly authorized officers as set forth below and have caused their
respective corporate seals to be hereunder affixed as of the date
first above written.
MEDCROSS, INC.
By: /s/ Xxxxx Y.L. Toh
Xxxxx Y.L. Toh, President
KALO ACQUISITIONS, L.L.C.
By: /s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx, Manager
THE CONSULTANT
/s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
