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EXHIBIT 99(a)
CONSULTING AGREEMENT
THIS AGREEMENT is made as of the 7th day of January, l997.
BETWEEN
U.S. Medical Systems, Inc.,
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
(hereinafter referred to as the "Company")
AND
Xxxxxx X. Xxxxxx, Xx.
0000 Xxx Xxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxx 00000
(hereinafter referred to as the "Consultant")
WHEREAS:
A. The Consultant has been providing and continues to provide the Company with
significant financial advice and services; and
B. The Company wishes to compensate the Consultant for advice and services
previously provided; and
C. The Company wished to contract for the future services of the Consultant as
financial and investment management consultant and general management advisor;
and
D. The Consultant has agreed to accept such contract for services upon the terms
and conditions as hereinafter set forth.
NOW, THEREFORE, THIS AGREEMENT WITNESSES THAT in consideration of the mutual
covenants herein contained, the parties hereto agree as follows:
1. ENGAGEMENT
1.1 Appointment: The Company hereby contracts for the services of the
Consultant, and the Consultant hereby agrees to perform the services for the
Company, in accordance with the terms and conditions of this Agreement. The
Consultant shall report to the Chairman of the Board of the Company.
1.2 Past Services: the Consultant has previously provided the following
services:
(a) advised the Company concerning strategic financial planning;
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(b) assisted with the due diligence review of the Company and analyzed the
Company's capital needs:
(c) advised the Company concerning various financing alternatives and analyzed
such alternatives:
(d) assisted the Company with introduction to, meetings with, and appointment
of investment bankers, facturing representatives etc.;
(e) assisted in the preparation of a business plan and private placement
memorandum(s);
(f) assisted with the due diligence review of possible acquisitions for the
Company; and
(g) assisted with the analysis of possible new products for the Company,
(h) assisted in the sale to third parties if existing products of the Company.
1.3 Scope of Duties: The Consultant shall have the following ongoing
responsibilities and duties:
(a) advise the Company with regard to possible reverse take over of a private
or public company, of such candidates and assist with negotiation with
such candidates, and
(b) analyze and advise the Company with respect to the various merger
strategies alternatives available to the Company, especially in the January
to September 1997, time frame
(c) provide analysis and make recommendations with respect to the Company's
existing and potential capital needs;
(d) provide assistance in the strategy to dispose of any or all current
operational assets should these medical assets be at odds with the merger/
reverse take over of a company in a completely different field.
1.4 Best Efforts: The Consultant shall at all times use his best efforts to
advance the interest of the Company and shall faithfully, industriously and to
the best of his abilities perform the responsibilities and duties described
above.
1.5 Reports: The Consultant shall deliver to the President on a monthly basis a
report detailing all activities and services provided to the Company for that
period.
1.6 BOD APPROVAL: PERFORMANCE BY THE COMPANY OF ITS DUTIES PURSUANT TO THIS
AGREEMENT. INCLUDING PAYMENT OF ANY REMUNERATION PURSUANT TO PARAGRAPH 3 HEREOF,
IS SUBJECT IN ALL
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RESPECTS TO APPROVAL BY THE BOARD OF DIRECTORS OF THE COMPANY. IF SUCH APPROVAL
IS NOT OBTAINED, THIS AGREEMENT SHALL BE NULL AND VOID AND OF NO FORCE AND
EFFECT.
2. TERM
Initial Term: This Agreement shall continue until December 31, 1997,
subject to earlier termination as hereinafter provided.
3. REMUNERATION
3.1 Remuneration: The Company shall compensate the Consultant for services
already rendered and for services to be rendered as follows:
(a) 50,000 options for conversion to shares of the Company's common
stock, $.60(US) value. These shares will not be registered
pursuant to state or federal securities laws and will be subject
to substantial restriction for resale. The Company will not be
obligated to register the shares. $20,000 will also be paid in
October 1997.
3.2 Payment: The remuneration set forth in Paragraph 3.1 shall be paid as
follows:
(a) The Company shall deliver to the Consultant the options described in
Paragraph 3.1(b); at the rate of 50,000 options for assistance in a merger or
reverse take over, effective February 3, 1997.
3.3 Expenses: The parties agree that the fee provided for in Paragraph 3.1(a)
hereof is intended to include reimbursement for all expenses incurred by the
Consultant in connection with his duties hereunder, and the Consultant shall
bear the cost of his own expenses over such amount.
4. CONFIDENTIALITY
The Consultant shall not, either during the course of his engagement
hereunder or at any time thereafter, disclose to any person, other than the
directors of the Company or the Company's professional advisors, any
confidential information concerning the business or affairs of the Company, or
its subsidiaries, which the Consultant may have acquired in the course of or
incidental to his appointment hereunder or otherwise, and the Consultant shall
not directly or indirectly use (whether for his own benefit or the detriment or
intended detriment of the Company) any confidential information he may acquire
with respect to the business and affairs of the Company, or its subsidiaries.
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5. NON-COMPETITION
be engaged in or concerned with or interested in or advise, lend money to,
guarantee the debts or obligation of or permit his name to be used or employed
by any other person or persons, including, without limitation, any individual,
firm, association, syndicate, company, corporation or other business enterprise,
engaged in or concerned with or interested in an operation or undertaking which
is in any way competitive with the business of the Company, without having
obtained the express written consent of the Company.
6. TERMINATION
6.1 Termination by the Company for Cause: The Company may terminate this
Agreement at any time for just cause by providing the Consultant with thirty
(30) days notice in writing.
6.2 Termination by the Company without Cause: The Company may terminate this
Agreement at any time for just cause by providing the Consultant with thirty
(30) days notice in writing.
7. OTHER PROVISIONS
7.1 Governing Law: This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas. Notwithstanding the foregoing,
it is agreed that the Consultant may commence an action in respect of the
enforcement of his rights hereunder in any jurisdiction in which the Company
carries on business, has an office or has assets.
7.2 Notice: Any notice required or permitted to be given under this Agreement
shall be in writing, and may be delivered personally or by telex or telecopier
or by prepaid registered post addressed to the parties at the above-mentioned
addressed or at such other address of which notice may be given by either of
such parties. Any notice shall be deemed to have been received, if personally
delivered or by telecopier, on the date of delivery and, if mailed as aforesaid.
then on the seventh business day after and excluding the day of mailing.
7. 3 Personal Nature: This Agreement is a contract for services and may not be
assigned in whole or in part by the Consultant.
7.4 Indemnity: The Consultant shall indemnify the Company and save harmless from
and against any and all claims, actions, damages, liabilities and expenses
arising out of or in connection with a breach of any kind by the Consultant of
any provisions, covenants, conditions and warranties contained in this
Agreement, or any other matter arising whatsoever out of this Agreement.
7.5 Prior Agreements: This Agreement supersedes any previous agreement,
arrangement or understanding, whether written or oral, between the parties
hereto.
7.6 Time of the Essence: Time is of the essence of this Agreement.
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7.7 Independent Contractor: The Consultant is an independent contractor, and the
Company shall not exercise any control or direction over the methods by which
the Consultant shall perform his services pursuant to this Agreement.
Notwithstanding anything contained herein to the contrary, this Agreement does
not create and is not intended to create a relation of master-servant or
employer-employee between the parties hereto.
7.8 Amendment: No amendment, alteration, or waiver of any of the terms of this
Agreement shall be binding upon either party to this Agreement unless it is in
writing and executed by such party.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
seventh day of January, 1997.
COMPANY:
U.S. Medical Systems, Inc.
By: /s/ XXX XXXXX
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Xxx Xxxxx, Chairman of the Board
and President
CONSULTANT:
/s/ XXXXXX X. XXXXXX, XX.
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Xxxxxx X. Xxxxxx, Xx.
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