EXHIBIT 10.2
AGREEMENT
This agreement is dated December 11, 2002 ("Agreement"), by and between
American International Industries, Inc., a Nevada corporation, Texas Real Estate
Enterprises, Inc., a Texas corporation, MidCity Houston Properties, Inc., a
Texas corporation, International Diversified Corporation, Ltd. ("IDC),
previously known as Elk International Corporation, Ltd. ("ELK"), and Xxxxxx
Xxxx, an individual (collectively "American") and SurgiCare, Inc., a Delaware
corporation ("SurgiCare").
WHEREAS, American and SurgiCare entered into a purchase agreement on
June 4, 2002 ("Purchase Agreement") and the parties desired to modify certain
terms of the Purchase Agreement and to enter into various other transactions as
described herein.
NOW, THEREFORE, for good and valuable consideration, the receipt which
is hereby acknowledged and accepted, the parties agree as follows:
1. Modification to the Certificate of Designation, Powers, Preferences
and Rights of the Series AA Redeemable Preferred Stock.
1.1 The parties agree to convert 300,000 shares of Series AA
Redeemable Preferred Stock ("Series AA") into 3,658,537 shares of SurgiCare
common stock, which common stock certificate is attached hereto as Exhibit "A".
American hereby acknowledges that SurgiCare has relied upon the representations
and warranties set forth in Section 3 of Exhibit "G-1" in determining to convert
the Series AA into shares of SurgiCare common stock. In connection with
American's conversion herein, American, hereby agrees to enter into a one year
irrevocable proxy attached hereto as Exhibit "H". The proxy will be released for
any shares that are sold to an unrelated third party.
1.2 With respect to the balance of the 900,000 shares of
Series AA, SurgiCare will file an amendment to the Certificate of Designation of
the Series AA in the form attached hereto as Exhibit "B" which modifies the
terms of the remaining 900,000 shares of Series AA as follows:
o No later than June 1, 2004, SurgiCare shall have the
option to redeem 300,000 shares of Series AA for a payment of
$1,500,000 or to convert 300,000 shares of Series AA to a SurgiCare
common stock equivalent of $1,500,000, calculated by dividing
$1,500,000 by the average closing price for the 20 previous trading
days prior to conversion, but not less than $0.41 per share.
o No later than June 1, 2005, SurgiCare shall have the
option to redeem 300,000 shares of Series AA for a payment of
$1,500,000 or to convert 300,000 shares of Series AA to a SurgiCare
common stock equivalent of $1,500,000, calculated by dividing
$1,500,000 by the average closing price for the previous 20 previous
trading days prior to conversion, but not less than $0.41 per share.
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o No later than June 1, 2006, SurgiCare shall have the
option to redeem the remaining 300,000 shares of Series AA for a
payment of $1,500,000 or to convert 300,000 shares of Series AA to a
SurgiCare common stock equivalent of $1,500,000, calculated by dividing
$1,500,000 by the average closing price for the 20 previous trading
days prior to conversion, but not less than $0.41 per share.
2. Agreement by American to Assist SurgiCare in Selling Land.
2.1 Xxxxxx Xxxx, individually, and American, collectively,
agree to use their best efforts to assist SurgiCare in selling the land assets
acquired by SurgiCare pursuant to the Purchase Agreement ("Property").
Assistance includes sharing contacts of Xxxxxx Xxxx and American with SurgiCare,
assisting in procuring appraisals, assisting in providing backup documentation
with respect to American's acquisition of such property and other reasonable
efforts. This requirement to assist SurgiCare shall continue for a period of
three years from the date hereof.
2.2 If, by June 1, 2006, SurgiCare is unable to sell any or
all of the Property for net sales proceeds to SurgiCare in an amount equal to or
greater than $4,000,000, American agrees on June 1, 2006 to return to SurgiCare
shares of SurgiCare common stock valued at $0.41 per share or cash, at the
option of American, equal to the difference between $4,000,000 and the net sales
proceeds received by SurgiCare from the sale of any of the Property during the
three year period from the date hereof. In the event that American does not own
any SurgiCare common stock, it agrees to pay such difference in cash upon such
date.
3. Closing Sterling Bank Loan.
3.1 Upon the date of this Agreement, SurgiCare shall have
closed the Sterling Bank loan in the minimum amount of $1,500,000.
3.2 Upon such closing of such Sterling Bank loan, SurgiCare
shall have used proceeds from the Sterling Bank loan to pay $300,000 of
currently owed real estate taxes on the Property and American shall pay the
balance of $57,823.63 of real estate taxes on the Property as of the date of
closing of the land sale to SurgiCare. Attached hereto as Exhibit "C" is
documentation reflecting that all currently owed real estate taxes on the
Property have been paid as described herein.
3.3 SurgiCare will use funds from the Sterling Bank loan to
pay off in full the $700,000 and the $400,000 SurgiCare Royal Oaks Bank term
loans. Attached hereto as Exhibit "D" is documentation reflecting the payment in
full of both the $400,000 and $700,000 Royal Oaks Bank term loans.
4. Indemnification of Xx. Xxxxxx'x Claims.
4.1 American shall execute the indemnification and hold
harmless agreement attached hereto as Exhibit "F" indemnifying SurgiCare against
"certain claims" from Xx. Xxxxxx.
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5. Agreement to Cooperate.
5.1 Xxxxxx Xxxx, individually, and American, collectively,
agree to make Xx. Xxxx available for depositions, affidavits and testimony in
connection with the lawsuit initiated by Xxxxxxx Xxxxx against SurgiCare and Xx.
Xxxxx Xxxxxxxxx to testify regarding transactions of which Xx. Xxxx and Xx.
Xxxxx entered into.
5.2 In connection herewith, Xx. Xxxx represents that Xx. Xxxxx
was not compensated by American, directly or indirectly, for any transactions
that Xx. Xxxxx negotiated for or on behalf of SurgiCare or himself while Xx.
Xxxxx was employed by SurgiCare.
6. Investment.
6.1 IDC agrees to purchase 2,439,024 shares of SurgiCare
common stock at $0.41 per share for an investment of $1,000,000. This investment
shall fund upon the date hereof and IDC shall enter into the subscription
agreement attached hereto as Exhibit "G."
6.2 At the time of issuance of the SurgiCare shares to IDC,
IDC will deliver out of the newly issued shares to SurgiCare, 730,000 of
SurgiCare common stock representing a pledge made by Xx. Xxxxxxxxx for the
$400,000 Royal Oaks loan. SurgiCare and Elk shall enter into the indemnification
and hold harmless agreement attached hereto as Exhibit "E." In addition, due to
the sale of a portion of the pledged shares, IDC agrees to reimburse to
SurgiCare $400,000 by January 15, 2003. SurgiCare shall hold the remaining
1,709,024 shares as collateral for the required $400,000 payment. IDC shall
forfeit a pro-rated portion of these shares if payment in full is not made by
January 15, 2003.
6.3 In connection with IDC's investment herein, IDC, hereby
agrees to enter into a one year irrevocable proxy attached hereto as Exhibit
"H-2". The proxy will be released for any shares that are sold to an unrelated
third party.
7. Additional Fundraising.
7.1 SurgiCare is in the process of raising additional funds to
fund its working capital obligations and to refinance existing debt obligations.
SurgiCare will raise up to $2,500,000 to be funded no later than January 31,
2003.
8. General Obligations.
8.1 At any time and from time to time, the parties agree, at
their expense, to take such actions and to execute and deliver such documents as
may be reasonably necessary to effectuate the purposes of this Agreement.
8.2 Without limiting the terms and provisions hereof, since a
breach of the provisions of this Agreement could not adequately be compensated
by money damages, the
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parties shall be entitled in addition to any other right or remedy available to
them, to an injunction restraining such breach or a threatened breach and to
specific performance of any such provision of this Agreement; and in either
case, no bond or other security shall be required in connection therewith, and
the parties hereby consent to the issuance of such an injunction and to the
ordering of specific performance.
8.3 The Agreement and the exhibits hereto set forth the entire
understanding of the parties with respect to the subject matter hereof supersede
all existing agreements (including the letter of intent dated November 15, 2002)
among them concerning such subject matter, and may be amended or modified only
by a written instrument duly executed by the Parties.
8.4 Any notice or other communication required or permitted to
be given hereunder shall be in writing and shall be delivered by personal
delivery or by overnight delivery or mailed by certified mail, return receipt
requested (or by the most nearly comparable method if mailed from or to a
location outside of the United States), or delivered against receipt to the
party to whom it is to be given at the address of such party set forth in the
signature pages to this Agreement. Any notice or other communication given by
certified mail (or by such comparable method) shall be deemed given at the time
of mailing (or comparable act), except for a notice changing a party's address,
which will be deemed given at the time of receipt thereof.
8.5 Any waiver by any party of a breach of any provision of
this Agreement shall not operate as or be construed to be a waiver of any other
breach of that provision or of any breach of any other provision of this
Agreement. The failure of a party to insist upon strict adherence to any term of
this Agreement on one or more occasions will not be considered a waiver or
deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement. Any waiver must be in writing
and, in the case of a corporate party, be authorized by a resolution of the
board of directors or by an officer of the waiving party.
8.6 The provisions of this Agreement shall be binding upon and
inure to the benefit of each party's respective successors, assigns, heirs, and
personal representatives.
8.7 This Agreement does not create, and shall not be construed
as creating, any rights enforceable by any Person not a party to this Agreement.
8.8 If any provision of this Agreement is invalid, illegal, or
unenforceable, the balance of this Agreement shall remain in effect, and if any
provision is inapplicable to any Person or circumstance, it shall nevertheless
remain applicable to all other persons and circumstances.
8.9 The headings of this Agreement are solely for convenience
of reference and shall be given no effect in the construction or interpretation
of this Agreement.
8.10 This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same
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instrument. It shall be governed by and construed in accordance with the laws of
the State of Texas without giving effect to conflict of laws. Each of the
parties agrees that any action brought between the parties may be brought only
in the state or federal courts located in Xxxxxx County, Texas, and in no other
place unless the parties expressly agree in writing to waive this requirement.
Each of the parties consents to jurisdiction in that location.
8.11 Each of the parties will bear all of its own legal,
accounting, investment banking, and other expenses incurred in connection with
this Agreement.
8.12 The language used in this Agreement will be deemed to be
the language chosen by the parties to express their mutual intent. No rule of
strict construction will be applied against any party. Any reference to a
federal, state, local or foreign statute or law will be deemed to also refer to
all rules and regulations as promulgated, unless the context requires otherwise.
Thus, use of the word "including" in this Agreement is intended by the parties
to be by way of example rather than limitation.
8.13 This Agreement and all actions taken hereunder shall be
governed by and construed in accordance with the laws of the State of Texas. In
the event there arises a disagreement between the parties to this Agreement in
which one party has, or claims to have, claims against the other, all such
claims and disputes shall be resolved by arbitration under the Rules of American
Arbitration Association.
8.14 The exhibits identified in this Agreement are
incorporated by reference and made a part of this Agreement.
IN WITNESS WHEREOF, the parties have duly executed this Agreement.
AMERICAN INTERNATIONAL INDUSTRIES, INC.
By: /s/ Xxxxxx Xxxx
------------------------------
Name: Xxxxxx Xxxx
Title: CEO
Address: 000 Xxxx Xxxxxx
Xxxxx, XX 00000
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TEXAS REAL ESTATE ENTERPRISES, INC.
By: /s/ Xxxxxx Xxxx
------------------------------
Name: Xxxxxx Xxxx
Title: Vice President
Address: 000 Xxxx Xxxxxx
Xxxxx, XX 00000
INTERNATIONAL DIVERSIFIED CORPORATION, LTD.
By: /s/ Elkana Faiwuszewicz
------------------------------
Elkana Faiwuszewicz, CEO
Address:
-------------------------
-------------------------
MIDCITY HOUSTON PROPERTIES, INC.
By: /s/ Xxxxxx Xxxx
------------------------------
Name: Xxxxxx Xxxx
Title: Vice President
Address: 000 Xxxx Xxxxxx
Xxxxx, XX 00000
XXXXXX XXXX
/s/ Xxxxxx Xxxx
----------------------------------
Address:
-------------------------
-------------------------
SURGICARE, INC.
By: /s/ Xxxx Xxxxx
------------------------------
Name: Xxxxxxx X. Xxxxx
Title: CFO
Address: 00000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
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EXHIBIT "E"
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT ("AGREEMENT") is made as of December
____, 2002, by and between SURGICARE, INC., a Delaware corporation
("SurgiCare"), AMERICAN INTERNATIONAL INDUSTRIES, INC., a Nevada corporation
("AII"), ELK INTERNATIONAL CORPORATION, LTD., a Bahamian corporation ("Elk") and
XXXXXX XXXX ("Dror"). AII, Elk and Dror are collectively referred to as the
"INDEMNITEES".
WHEREAS, Xxxxx Xxxxxxxxx pledged 730,730 shares of Surgicare common
stock ("Pledged Shares") pursuant to a stock pledge agreement entered into on or
about August 12, 2002 ("Pledge Agreement"); and
WHEREAS, Elk sold a portion of the Pledged Shares; and
WHEREAS, AII (an affiliate of Elk) and Surgicare are entering into an
agreement dated the date hereof ("Master Agreement"), to which this Agreement is
attached as Exhibit "E"; and
WHEREAS, SurgiCare and Indemnitees have agreed to enter this Agreement
as part of the consideration given pursuant to the Master Agreement; and
NOW, THEREFORE, in consideration of the foregoing and with the
understanding on the part of SurgiCare that the Indemnitees are relying on this
Agreement in agreeing to enter into the Master Agreement and for other and
valuable consideration the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following
defined terms have the meanings indicated below:
"CLAIM" means any threatened, pending or completed civil
action, suit or proceeding instituted by Xxxxx Xxxxxxxxx in connection
with the Pledged Shares or the Pledge Agreement.
"EXPENSES" means all reasonable attorney's fees and all other
reasonable fees, costs, expenses and obligations paid or incurred in
connection with investigating, defending or participating, or preparing
to defend or participate in, any Claim.
"LOSS" means any and all damages, judgments, fines, penalties,
amounts paid or payable in settlement, deficiencies, losses and
Expenses (including all interest, assessments, and other charges paid
or payable in connection with or respect of such Losses).
2. INDEMNIFICATION.
(a) In the event the Indemnitees is or becomes a party to or other
participant in, or is threatened to be made a party to or other participant in,
a Claim, SurgiCare to the fullest extent permitted by applicable law shall
indemnify and hold harmless the Indemnitee from and against any and all Losses
suffered, incurred or sustained by the Indemnitee or to which the Indemnitee
becomes subject, resulting from, arising out of or relating to such Claim (it
being understood that except as provided in Section 2(c) with respect to
Expenses, reimbursements of any such Losses shall be made as soon as practicable
but in any event no later than 15 days after written request (a "Claim Notice")
is made to SurgiCare accompanied by supporting documentation). The Indemnitee
shall give SurgiCare written notice of any Claim (accompanied by such reasonable
supporting documentation as may be in the Indemnitee's possession) as soon as
practicable after the Indemnitee becomes aware thereof; provided that the
failure
PAGE 1 OF 3
of the Indemnitee to give such notice shall not relieve SurgiCare of its
indemnification obligations under this Agreement, except to the extent that such
failure materially prejudices the rights of SurgiCare.
(b) In the case of the commencement of any action against the
Indemnitee in respect of which the Indemnitee may seek indemnification from
SurgiCare hereunder, SurgiCare will be entitled to participate therein,
including, without limitation, the negotiation and approval of any settlement of
such action and, to the extent that SurgiCare may wish to assume the defense
thereof, with counsel reasonably satisfactory to the Indemnitee, and after
notice from SurgiCare to the Indemnitee of SurgiCare's election so to assume the
defense thereof, together with SurgiCare's written acknowledgement and agreement
that it will fully indemnify the Indemnitee under the terms of this Agreement
with regard to such Claim, SurgiCare will not be liable to the Indemnitee under
this Agreement for any Expenses subsequently incurred by the Indemnitee in
connection with the defense thereof other than reasonable costs of investigation
and preparation therefor (including, without limitation, appearing as a witness
and reasonable fees and expenses of legal counsel in connection therewith). If
in any action for which indemnity may be sought hereunder SurgiCare shall not
have timely assumed the defense thereof with counsel reasonably satisfactory to
the Indemnitee, or the Indemnitee shall have been advised by counsel that it
would constitute a conflict of interest for the same counsel to represent both
the Indemnitee and SurgiCare in such action, or if the Indemnitee may have
separate or additional defenses with regard to such action, the Indemnitee shall
have the right to employ counsel for the Indemnitee reasonably satisfactory to
SurgiCare in such action, in which event SurgiCare shall reimburse the
Indemnitee for all reasonable legal fees and expenses incurred by the Indemnitee
in connection with the defense thereof. SurgiCare shall in no event be liable
for any settlement of any action effected without its prior written consent
(which consent shall not be unreasonably withheld, delayed and conditioned).
SurgiCare shall not settle any Claim in any manner that would impose any
expense, penalty, obligation or limitation on the Indemnitee, or would contain
language other than a recitation of any amounts to be paid in settlement, the
fact of the settlement or the underlying claim relating to the settlement, that
could be viewed, in the sole discretion of the Indemnitee, as an acknowledgement
of wrongdoing on the part of the Indemnitee or as detrimental to the reputation
of the Indemnitee, without the Indemnitee's prior written consent.
(c) The Indemnitee's right to indemnification in this Section 2 shall
include the right of the Indemnitee to be advanced by SurgiCare any Expenses
incurred in connection with any Claim as such Expenses are incurred by the
Indemnitee; provided, however, that all amounts advanced in respect of such
Expenses shall be repaid to SurgiCare by the Indemnitee if it shall ultimately
be determined by a court of appropriate jurisdiction or arbitrator that the Loss
arose as a result of the Indemnitee's recklessness or willful misconduct.
3. PARTIAL INDEMNITY. If the Indemnitees are entitled under any
provision of this Agreement to indemnification by SurgiCare for some or a
portion of any Loss, but not for all of the total amount thereof, SurgiCare
shall nevertheless indemnify the Indemnitees for the portion thereof to which
the Indemnitees are entitled. Moreover, notwithstanding any other provision of
this Agreement, to the extent that the Indemnitees have been successful on the
merits or otherwise in defense of any or all Claims or in defense of any issue
or matter therein, including dismissal without prejudice, the Indemnitees shall
be indemnified against all Expenses incurred in connection therewith.
4. NONEXCLUSIVITY. The rights of the Indemnitees hereunder shall be in
addition to any other rights the Indemnitees may have under any insurance
policy, corporate law or otherwise.
5. AMENDMENT, ETC. No supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by both of the parties
hereto. No waiver of any of the provisions of this Agreement shall be deemed or
shall constitute a waiver of any other provisions hereof (whether or not
similar) nor shall such waiver constitute a continuing waiver.
PAGE 2 OF 3
6. SUBROGATION. In the event of any payment under this Agreement,
SurgiCare shall be subrogated to the extent of such payment to all of the rights
of recovery of the Indemnitees, and the Indemnitees shall execute all papers
reasonably required and shall take such action that may be reasonably necessary
to secure such rights, including the execution of such documents reasonably
necessary to enable SurgiCare effectively to bring suit to enforce such rights.
7. NO DUPLICATION OF PAYMENTS. SurgiCare shall not be liable under this
Agreement to make any payment in connection with a Claim made against the
Indemnitees to the extent the Indemnitees have otherwise actually received
payment (under any insurance policy, bylaw or otherwise) of the amounts
otherwise indemnifiable hereunder; PROVIDED that, if the Indemnitee for any
reason is required to disgorge any payment actually received, SurgiCare shall be
obligated to pay such amount to the Indemnitee in accordance with the other
terms of this Agreement (i.e., disregarding the terms of this Section 7).
8. GOVERNING LAW; VENUE. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas, without giving
effect to principles of conflicts of laws. Venue of any action to enforce this
Agreement will be in Xxxxxx County, Texas.
9. COUNTERPARTS. This Agreement may be executed in one or more
counterparts for the convenience of the parties hereto, all of which together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
AMERICAN INTERNATIONAL SURGICARE, INC.
INDUSTRIES, INC.
By: By:
-------------------------------- --------------------------------------
Xxxxxx Xxxx, President Xxxxx XxXxxxx, Chief Executive Officer
ELK INTERNATIONAL CORPORATION, LTD.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
XXXXXX XXXX, INDIVIDUALLY
By:
--------------------------------
Xxxxxx Xxxx, Individually
PAGE 3 OF 3
EXHIBIT "F"
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT ("AGREEMENT") is made as of December
____, 2002, by and between AMERICAN INTERNATIONAL INDUSTRIES, INC., a Nevada
corporation ("AII"), and SURGICARE, INC., a Delaware corporation (the
"INDEMNITEE").
WHEREAS, AII and Indemnitee have entered into an agreement dated the
date hereof ("Master Agreement"), to which this Agreement is Exhibit "F"; and
WHEREAS, Indemnitee has entered into a finders fee agreement with Sig
Xxxxxx dated January 10, 2002, where Sig Xxxxxx was entitled to certain fees and
expenses ("Finders Fee Agreement"); and
NOW, THEREFORE, in consideration of the foregoing and with the
understanding on the part of AII that the Indemnitee is relying on this
Agreement in agreeing to enter into the Master Agreement and for other and
valuable consideration the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following
defined terms have the meanings indicated below:
"CLAIM" means any threatened, pending or completed civil
action, suit or proceeding instituted by Sig Xxxxxx, or any entity
controlled by Sig Xxxxxx ("Xxxxxx"), in which Xxxxxx seeks fees and/or
expenses (in the form of cash, stock, warrants or other security)
arising out of the Finders Fee Agreement or any other verbal or written
agreement with Indemnitee or Xxxxxxx Xxxxx in excess of the 69,000
shares of common stock of SurgiCare issued to Xxxxxx on or about June,
2002.
"EXPENSES" means all reasonable attorney's fees and all other
reasonable fees, costs, expenses and obligations paid or incurred in
connection with investigating, defending or participating, or preparing
to defend or participate in, any Claim.
"LOSS" means any and all damages, judgments, fines, penalties,
amounts paid or payable in settlement, deficiencies, losses and
Expenses (including all interest, assessments, and other charges paid
or payable in connection with or respect of such Losses).
2. INDEMNIFICATION.
(a) In the event the Indemnitee is or becomes a party to or other
participant in, or is threatened to be made a party to or other participant in,
a Claim, AII to the fullest extent permitted by applicable law shall indemnify
and hold harmless the Indemnitee from and against any and all Losses suffered,
incurred or sustained by the Indemnitee or to which the Indemnitee becomes
subject, resulting from, arising out of or relating to such Claim (it being
understood that except as provided in Section 2(c) with respect to Expenses,
reimbursements of any such Losses shall be made as soon as practicable but in
any event no later than 15 days after written request (a "Claim Notice") is made
to AII accompanied by supporting documentation). The Indemnitee shall give AII
written notice of any Claim (accompanied by such reasonable supporting
documentation as may be in the Indemnitee's possession) as soon as practicable
after the Indemnitee becomes aware thereof; provided that the failure of the
Indemnitee to give such notice shall not relieve AII of its indemnification
obligations under this Agreement, except to the extent that such failure
materially prejudices the rights of AII.
PAGE 1 OF 3
(b) In the case of the commencement of any action against the
Indemnitee in respect of which the Indemnitee may seek indemnification from AII
hereunder, AII will be entitled to participate therein, including, without
limitation, the negotiation and approval of any settlement of such action and,
to the extent that AII may wish to assume the defense thereof, with counsel
reasonably satisfactory to the Indemnitee, and after notice from AII to the
Indemnitee of AII's election so to assume the defense thereof, together with
AII's written acknowledgement and agreement that it will fully indemnify the
Indemnitee under the terms of this Agreement with regard to such Claim, AII will
not be liable to the Indemnitee under this Agreement for any Expenses
subsequently incurred by the Indemnitee in connection with the defense thereof
other than reasonable costs of investigation and preparation therefor
(including, without limitation, appearing as a witness and reasonable fees and
expenses of legal counsel in connection therewith). If in any action for which
indemnity may be sought hereunder AII shall not have timely assumed the defense
thereof with counsel reasonably satisfactory to the Indemnitee, or the
Indemnitee shall have been advised by counsel that it would constitute a
conflict of interest for the same counsel to represent both the Indemnitee and
AII in such action, or if the Indemnitee may have separate or additional
defenses with regard to such action, the Indemnitee shall have the right to
employ counsel for the Indemnitee reasonably satisfactory to AII in such action,
in which event AII shall reimburse the Indemnitee for all reasonable legal fees
and expenses incurred by the Indemnitee in connection with the defense thereof.
AII shall in no event be liable for any settlement of any action effected
without its prior written consent (which consent shall not be unreasonably
withheld, delayed and conditioned). AII shall not settle any Claim in any manner
that would impose any expense, penalty, obligation or limitation on the
Indemnitee, or would contain language other than a recitation of any amounts to
be paid in settlement, the fact of the settlement or the underlying claim
relating to the settlement, that could be viewed, in the sole discretion of the
Indemnitee, as an acknowledgement of wrongdoing on the part of the Indemnitee or
as detrimental to the reputation of the Indemnitee, without the Indemnitee's
prior written consent.
(c) The Indemnitee's right to indemnification in this Section 2 shall
include the right of the Indemnitee to be advanced by AII any Expenses incurred
in connection with any Claim as such Expenses are incurred by the Indemnitee;
provided, however, that all amounts advanced in respect of such Expenses shall
be repaid to AII by the Indemnitee if it shall ultimately be determined by a
court of appropriate jurisdiction or arbitrator that the Loss arose as a result
of the Indemnitee's recklessness or willful misconduct in connection with its
engagement with Xxxxxx.
3. PARTIAL INDEMNITY. If the Indemnitee is entitled under any provision
of this Agreement to indemnification by AII for some or a portion of any Loss,
but not for all of the total amount thereof, AII shall nevertheless indemnify
the Indemnitee for the portion thereof to which the Indemnitee is entitled.
Moreover, notwithstanding any other provision of this Agreement, to the extent
that the Indemnitee has been successful on the merits or otherwise in defense of
any or all Claims or in defense of any issue or matter therein, including
dismissal without prejudice, the Indemnitee shall be indemnified against all
Expenses incurred in connection therewith.
4. NONEXCLUSIVITY. The rights of the Indemnitee hereunder shall be in
addition to any other rights the Indemnitee may have under any insurance policy,
corporate law or otherwise.
5. AMENDMENT, ETC. No supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by both of the parties
hereto. No waiver of any of the provisions of this Agreement shall be deemed or
shall constitute a waiver of any other provisions hereof (whether or not
similar) nor shall such waiver constitute a continuing waiver.
6. SUBROGATION. In the event of any payment under this Agreement, AII
shall be subrogated to the extent of such payment to all of the rights of
recovery of the Indemnitee, and the Indemnitee shall execute all papers
reasonably required and shall take such action that may be reasonably
PAGE 2 OF 3
necessary to secure such rights, including the execution of such documents
reasonably necessary to enable AII effectively to bring suit to enforce such
rights.
7. NO DUPLICATION OF PAYMENTS. AII shall not be liable under this
Agreement to make any payment in connection with a Claim made against the
Indemnitee to the extent the Indemnitee has otherwise actually received payment
(under any insurance policy, bylaw or otherwise) of the amounts otherwise
indemnifiable hereunder; PROVIDED that, if the Indemnitee for any reason is
required to disgorge any payment actually received, AII shall be obligated to
pay such amount to the Indemnitee in accordance with the other terms of this
Agreement (i.e., disregarding the terms of this Section 7).
8. GOVERNING LAW; VENUE. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas, without giving
effect to principles of conflicts of laws. Venue of any action to enforce this
Agreement will be in Xxxxxx County, Texas and the parties agree that venue shall
be in federal or state court in Xxxxxx County, Texas.
9. COUNTERPARTS. This Agreement may be executed in one or more
counterparts for the convenience of the parties hereto, all of which together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
AMERICAN INTERNATIONAL SURGICARE, INC.
INDUSTRIES, INC.
By: By:
-------------------------------- --------------------------------------
Xxxxxx Xxxx, President Xxxxx XxXxxxx, Chief Executive Officer
PAGE 3 OF 3
EXHIBIT G
SUBSCRIPTION AGREEMENT
IN
SURGICARE, INC.
Mr. Xxxx Xxxxx, Chief Financial Officer
SurgiCare, Inc.
00000 Xxxxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
1. SUBSCRIPTION. The undersigned (often referred to individually as
"Purchaser" or "Shareholder" or "you") hereby makes application to become an
investor in SurgiCare, Inc., a Delaware corporation ("Company"), and to purchase
2,439,024 Shares at a price of $0.41 per Share.
2. ACCEPTANCE OF SUBSCRIPTION. It is understood and agreed that the
Company shall have the right, at any time prior to receipt of notice of
cancellation from the undersigned to accept or reject this Subscription
Agreement, in whole or in part, and that the same shall be deemed to be accepted
by the Company only when it is signed by an authorized officer of the Company.
3. REPRESENTATIONS BY THE UNDERSIGNED. The undersigned represents and
warrants as follows:
a. The undersigned has carefully reviewed and understood
this Subscription Agreement, the Company's most
recent report filed with the Securities and Exchange
Commission ("SEC") on Form 10-QSB for the nine months
ended September 30, 2002, all reports filed with the
SEC since January 1, 2002 recognizing that the
undersigned is only relying on the financial
information of the Company as contained in the Form
10-QSB for the nine months ended September 30, 2002
(collectively, the above documents are referred to as
the "Subscription Documents");
b. The undersigned is purchasing the Shares based solely
on the Subscription Documents;
c. The undersigned recognizes that the Shares have not
been registered under the Securities Act of 1933, as
amended ("Act"), nor under the securities laws of any
state and, therefore, cannot be resold unless the
resale of the Shares is registered under the Act or
unless an exemption from registration is available;
no public agency has passed upon the accuracy or
adequacy of the information contained in the
Subscription Documents or the fairness of the terms
of the offering;
d. The undersigned is acquiring the Shares for its own
account for long-term investment and not with a view
toward resale, fractionalization or division, or
distribution thereof, and it does not presently have
any reason to anticipate any change in its
circumstances, financial or otherwise, or particular
occasion or event which would necessitate or require
his or her sale or distribution of the Shares. No one
other than the undersigned has any beneficial
interest in said securities;
1
e. The undersigned understands and acknowledges that the
undersigned has no right to require registration of
resale of the securities purchased hereby under the
Act or under any state securities laws;
f. The undersigned represents it is an Accredited
Investor as defined in Regulation D promulgated under
the Act.
g. The undersigned recognizes that the total amount of
funds tendered to purchase the Shares is placed at
the risk of the business and may be completely lost.
The undersigned understands that there can be no
assurance of profitable operations and the purchase
of Shares as an investment involves risks;
h. The undersigned realizes that the Shares cannot
readily be sold, that it may not be possible to sell
or dispose of the Shares and therefore the Shares
must not be purchased unless the undersigned has
liquid assets sufficient to assure that such purchase
will cause no undue financial difficulties and the
undersigned can provide for current needs and
possible personal contingencies;
i. The undersigned understands that there are
substantial restrictions on the transferability of
the Shares, and that any certificate or other
document evidencing the Shares will have
substantially the following restrictive legend
thereon:
"The securities represented by this
certificate have been acquired for investment and
have not been registered under the Securities Act of
1933, as amended ("Act") or the securities laws of
any state. Such securities may not be sold, pledged,
hypothecated or otherwise transferred at any time
except upon registration or upon delivery to the
Company of an opinion of counsel satisfactory to the
Company that such registration is not required or
evidence satisfactory to the Company that any such
transfer will not violate the Act or the securities
laws of any state."
j. The undersigned has not become aware of the offering
of Shares by any form of general solicitation or
advertising, including, but not limited to
advertisements, articles, notices or other
communications published in any newspaper, magazine
or other similar media or broadcast over television
or radio or any seminar or meeting where those
individuals that have attended have been invited by
any such or similar means of general solicitation or
advertising.
4. INDEMNIFICATION. It is acknowledged that the meaning and legal
consequences of the representations and warranties contained in this
Subscription Agreement are understood and the undersigned hereby agrees to
indemnify and hold harmless the Company and each officer thereof from and
against any and all loss, damage and liability due to or arising out of a breach
of any of the representations and warranties made in this Subscription
Agreement. The representations and warranties contained herein are intended to
and shall survive delivery of the Subscription Agreement.
This Subscription Agreement is executed effective on this the ______
day of _______, 200___, in the State of Texas.
2
INTERNATIONAL DIVERSIFIED CORPORATION, LTD.
By:
---------------------------------------
Elkana Faiwuszewicz, CEO
-------------------------------------------
Please print the exact name (registration)
Investor desires on records of the Company.
-------------------------------------------
Xxxxxx Xxxxxxx Xxxxx xx Xxx.
-------------------------------------------
Xxxx, Xxxxx Zip Code
( )
-------------------------------------------
Telephone
-------------------------------------------
Taxpayer I.D. Number
ACCEPTED BY THE COMPANY this the _______ day of December, 2002.
SURGICARE, INC.
By:
---------------------------------------
Xxxxxxx Xxxxx, Chief Financial Officer
3
EXHIBIT G-1
SUBSCRIPTION AGREEMENT
IN
SURGICARE, INC.
Mr. Xxxx Xxxxx, Chief Financial Officer
SurgiCare, Inc.
00000 Xxxxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
1. SUBSCRIPTION. The undersigned (often referred to individually as
"Purchaser" or "Shareholder" or "you") hereby makes application to become an
investor in SurgiCare, Inc., a Delaware corporation ("Company"), and to purchase
3,658,537 Shares at a price of $0.41 per Share through a conversion of 300,000
shares of Series AA Redeemable Preferred Stock.
2. ACCEPTANCE OF SUBSCRIPTION. It is understood and agreed that the
Company shall have the right, at any time prior to receipt of notice of
cancellation from the undersigned to accept or reject this Subscription
Agreement, in whole or in part, and that the same shall be deemed to be accepted
by the Company only when it is signed by an authorized officer of the Company.
3. REPRESENTATIONS BY THE UNDERSIGNED. The undersigned represents and
warrants as follows:
a. The undersigned has carefully reviewed and understood
this Subscription Agreement, the Company's most
recent report filed with the Securities and Exchange
Commission ("SEC") on Form 10-QSB for the nine months
ended September 30, 2002, all reports filed with the
SEC since January 1, 2002 recognizing that the
undersigned is only relying on the financial
information of the Company as contained in the Form
10-QSB for the nine months ended September 30, 2002
(collectively, the above documents are referred to as
the "Subscription Documents");
b. The undersigned is purchasing the Shares based solely
on the Subscription Documents;
c. The undersigned recognizes that the Shares have not
been registered under the Securities Act of 1933, as
amended ("Act"), nor under the securities laws of any
state and, therefore, cannot be resold unless the
resale of the Shares is registered under the Act or
unless an exemption from registration is available;
no public agency has passed upon the accuracy or
adequacy of the information contained in the
Subscription Documents or the fairness of the terms
of the offering;
d. The undersigned is acquiring the Shares for its own
account for long-term investment and not with a view
toward resale, fractionalization or division, or
distribution thereof, and it does not presently have
any reason to anticipate any change in its
circumstances, financial or otherwise, or particular
occasion or event which would necessitate or require
his or her sale or distribution of the Shares. No one
other than the undersigned has any beneficial
interest in said securities;
1
e. The undersigned understands and acknowledges that the
undersigned has no right to require registration of
resale of the securities purchased hereby under the
Act or under any state securities laws;
f. The undersigned represents it is an Accredited
Investor as defined in Regulation D promulgated under
the Act.
g. The undersigned recognizes that the total amount of
funds tendered to purchase the Shares is placed at
the risk of the business and may be completely lost.
The undersigned understands that there can be no
assurance of profitable operations and the purchase
of Shares as an investment involves risks;
h. The undersigned realizes that the Shares cannot
readily be sold, that it may not be possible to sell
or dispose of the Shares and therefore the Shares
must not be purchased unless the undersigned has
liquid assets sufficient to assure that such purchase
will cause no undue financial difficulties and the
undersigned can provide for current needs and
possible personal contingencies;
i. The undersigned understands that there are
substantial restrictions on the transferability of
the Shares, and that any certificate or other
document evidencing the Shares will have
substantially the following restrictive legend
thereon:
"The securities represented by this
certificate have been acquired for investment and
have not been registered under the Securities Act of
1933, as amended ("Act") or the securities laws of
any state. Such securities may not be sold, pledged,
hypothecated or otherwise transferred at any time
except upon registration or upon delivery to the
Company of an opinion of counsel satisfactory to the
Company that such registration is not required or
evidence satisfactory to the Company that any such
transfer will not violate the Act or the securities
laws of any state."
j. The undersigned has not become aware of the offering
of Shares by any form of general solicitation or
advertising, including, but not limited to
advertisements, articles, notices or other
communications published in any newspaper, magazine
or other similar media or broadcast over television
or radio or any seminar or meeting where those
individuals that have attended have been invited by
any such or similar means of general solicitation or
advertising.
4. INDEMNIFICATION. It is acknowledged that the meaning and legal
consequences of the representations and warranties contained in this
Subscription Agreement are understood and the undersigned hereby agrees to
indemnify and hold harmless the Company and each officer thereof from and
against any and all loss, damage and liability due to or arising out of a breach
of any of the representations and warranties made in this Subscription
Agreement. The representations and warranties contained herein are intended to
and shall survive delivery of the Subscription Agreement.
This Subscription Agreement is executed effective on this the ______
day of _______, 200___, in the State of Texas.
2
AMERICAN INTERNATIONAL INDUSTRIES, INC.
By:_____________________________
Xxxxxx Xxxx, CEO
-----------------------------------------------
Please print the exact name (registration)
Investor desires on records of the Company.
-----------------------------------------------
Xxxxxx Xxxxxxx Xxxxx xx Xxx.
-----------------------------------------------
Xxxx, Xxxxx Zip Code
( )
-----------------------------------------------
Telephone
-----------------------------------------------
Taxpayer I.D. Number
ACCEPTED BY THE COMPANY this the _______ day of December, 2002.
SURGICARE, INC.
By:
-------------------------------------------
Xxxxxxx Xxxxx, Chief Financial Officer
3
EXHIBIT "H"
IRREVOCABLE PROXY
OF
AMERICAN INTERNATIONAL INDUSTRIES
Name of Issuer: Surgicare, Inc.
---------------------------------
Common Stock Certificate Nos.:
------------------
Number of Shares of Common Stock:
---------------
I, Xxxxxx Xxxx, as President and Chairman of the Board of Directors of American
International Industries (the "Company"), as holder of the shares described
above, revoke any previously executed proxies and appoint Xxxxx XxXxxxx as my
proxy to attend shareholders' meetings, vote, execute consents, and otherwise
act for me in the same manner and with the same effect as if the Company was
personally present until December _____, 2003. Until that time, this proxy shall
be irrevocable unless terminated by mutual agreement of the parties.
This proxy is irrevocable and is made and executed pursuant to an agreement
between American International Industries, Inc., Texas Real Estate Enterprises,
Inc., MidCity Houston Properties, Inc., Xxxxxx Xxxx and SurgiCare, Inc. dated
the date hereof ("Agreement"), to which this proxy is Exhibit "H". The shares
described above were sold and issued to the Company in connection with the
Agreement and this proxy is given as part of the Agreement.
Dated: December ___, 2002
By:
----------------------------------
Xxxxxx Xxxx, President
EXHIBIT "H-2"
IRREVOCABLE PROXY
OF
INTERNATIONAL DIVERSIFIED CORPORATION, LTD.
Name of Issuer: Surgicare, Inc.
------------------------------
Common Stock Certificate Nos.:
---------------
Number of Shares of Common Stock:
------------
I, Elkana Faiwuszewicz, as President of International Diversified Corporation,
Ltd. (the "Company"), as holder of the shares described above, revoke any
previously executed proxies and appoint Xxxxx XxXxxxx as my proxy to attend
shareholders' meetings, vote, execute consents, and otherwise act for me in the
same manner and with the same effect as if the Company was personally present
until December 31, 2003. Until that time, this proxy shall be irrevocable unless
terminated by mutual agreement of the parties.
This proxy is irrevocable and is made and executed pursuant to an agreement
between American International Industries, Inc., Texas Real Estate Enterprises,
Inc., MidCity Houston Properties, Inc., Xxxxxx Xxxx and SurgiCare, Inc. dated
the date hereof ("Agreement"), to which this proxy is Exhibit "H-2". The shares
described above were sold and issued to the Company in connection with the
Agreement and this proxy is given as part of the Agreement.
Dated: December ___, 2002
By:
------------------------------------
Elkana Faiwuszewicz, President
