EXHIBIT 10.9
FINANCIAL ADVISORY AND CONSULTING AGREEMENT
This agreement ("Agreement") is made and entered into this 1st day of
March, 2001 between Metropolitan Health Networks, a Florida corporation (the
"Company"), and National Securities Corporation (the "Consultant"). For good and
valuable consideration (the sufficiency and receipt of which is hereby
acknowledged) the Company and National hereto mutually agree and intend to be
legally bound for themselves and their respective heirs, legal representatives,
successors and assigns to the terms of this Agreement.
1. Purpose. The Company hereby retains the Consultant on an
non-exclusive basis during the term specified to render consulting advice to the
Company relating to financial and similar matters, upon the terms and conditions
as set forth herein.
2. Terms and Consideration. This Agreement shall be effective for a
period of three years commencing on the date first written above (the
"Engagement Period"). The Company shall pay National $2,000 per month during the
Engagement Period. The Company has the right to terminate the Agreement after
six months. The Company shall issue to Consultant, upon execution of this
Agreement, 100,000 common stock purchase warrants (the "Warrants") exercisable
for a period of three (3) years, with an exercise price equal to $1.10. The
Company shall issue to Consultant 100,000 common stock purchase warrants
exercisable for a period of three (3) years, with an exercise price equal to
$1.50 (the "Second Warrants"), 50,000 of the Second Warrants shall vest three
months from the date of the Agreement and the other 50,000 of the Second
Warrants shall vest six months and one day from the date of the Agreement,
however, all 100,000 of the Second Warrants shall vest upon the Consultants
introduction to registered representatives of the Consultant located in the
Consultant's Boca Raton, New York, and Seattle offices. The Warrants and Second
Warrants shall contain customary terms, including, but not limited to, demand
and piggyback registration rights.
3. Duties of Consultant. During the term of this Agreement, the
Consultant will provide the Company with such regular and customary consulting
advice as is reasonably requested by the Company, provided that the Consultant
shall not be required to undertake duties not reasonably within the scope of the
consulting advisory services contemplated by this Agreement. In performance of
these duties, the Consultant shall provide the Company with the benefits of its
best judgment and efforts. It is understood and acknowledged by the parties that
the value of the Consultant's advice is not measurable in any quantitative
manner, and that the Consultant shall not be obligated to spend any specific
amount of time doing so. The Consultant's duties may include, but not
necessarily be limited to:
A. Providing sponsorship and exposure in connection with the
dissemination of corporate information regarding the Company to the investment
community at large.
B. Assisting in the Company's financial public relations, including
discussions between the Company and the financial community.
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C. Advice regarding the financial structure of the Company and its
divisions or subsidiaries or any programs and projects, as such issues relate to
the public market for the Company's equity securities.
D. Rendering advice with respect to any acquisition program of the
Company, as such program relates to the public market for the Company's equity
securities.
E. Rendering advice regarding the public market for the Company's
securities and the timing and structure of any future public offering or private
placement of the Company's equity securities.
F. Introducing the company to potential retail and institutional
investors.
4. Relationships with others. The Company acknowledges that the
Consultant or its affiliates is in the business of providing financial service
and consulting advice (of all types contemplated by this Agreement) to others.
Nothing contained herein shall be construed to limit or restrict the Consultant
in conducting such business with respect to others, or in rendering such advise
to others. In connection with the rendering of services hereunder, Consultant
has been or will be furnished with confidential information concerning the
Company including, but not limited to, financial statements and information,
cost and expense data, production data, trade secrets, marketing and customer
data, and such other information not generally obtained from public or published
information or trade sources. Such information shall be deemed "Confidential
Material" and, except as specifically provided herein, shall not be disclosed by
Consultant without prior written consent of the Company and shall be used only
in compliance with applicable laws, including but not limited to Regulation FD.
In the event Consultant is required by applicable law or legal process to
disclose any of the Confidential Material, it is agreed that Consultant will
deliver to the Company prompt notice of such requirement prior to disclosure of
same to permit the Company to seek an appropriate protective order and/or waive
compliance of this provision. If, in the absence of a protective order or
receipt of written waiver, Consultant is nonetheless, in the written opinion of
counsel, compelled to disclose any Confidential Material, Consultant may do so
without liability hereunder provided that notice of such prospective disclosure
is delivered to the Company prior to actual disclosure. Following the
termination of this Agreement, Consultant shall deliver to the Company all
Confidential Material.
5. Consultant's Liability. In the absence of gross negligence or
willful misconduct on the part of National or National's material breach of this
Agreement, National shall not be liable to the Company or to any officer,
director, employee, agent, representative, stockholder or creditor of the
Company for any action or omission of National or any of its officers,
directors, employees, agents, representatives or stockholders in the course of,
or in connection with, rendering or performing any services hereunder. The
liability of National pursuant to this Engagement Letter shall be limited to the
aggregate fees received by National hereunder, which shall not include any
liability for incidental, consequential or punitive damages. The Company agrees
to indemnify National in accordance with the provisions of Annex A hereto, which
is incorporated by reference and made a part hereof.
6. Termination. This Engagement Letter may be terminated at any time
during the Engagement Period by National upon fifteen (15) days prior written
notice to the Company, in the event that National becomes aware of (i) any
material adverse change in the business or operations of the Company which
National reasonably believes would adversely affect National's ability to render
the services contemplated hereunder, (ii) any material misrepresentation by the
Company with respect to the business operations, assets,
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or financial condition, results of operations or prospects of the Company, or
(iii) any breach by the Company of its obligations under this Engagement Letter.
In the event of termination (i) this Engagement Letter shall become
void, without liability on the part of National or its affiliates, directors,
officers or stockholders, and (ii) National shall be entitled to retain or
receive compensation for services it has rendered, including payment for
expenses it has incurred up to the date of such termination.
7. Expenses. The Company, upon receipt of appropriate supporting
documentation, shall reimburse the Consultant for any and all reasonable
out-of-pocket expenses incurred in connection with services provided to the
Company, subject to prior written approval of the Company.
8. Limitation Upon the Use of Advice and Services.
(a) No person or entity, other than the Company or any of its
subsidiaries or directors or officers of each of the foregoing, shall be
entitled to make use of or rely upon the advice of the Consultant to be given
hereunder, and the Company shall not transmit such advice to, or encourage or
facilitate the use or reliance upon such advice by others without the prior
consent of the Consultant.
(b) The Company hereby acknowledges that the Consultant, for services
rendered under this Agreement, makes no commitment whatsoever as to recommend or
advise its clients to purchase the securities of the Company. Research reports
that may be prepared by the Consultant will, when and if prepared, be based
solely on the merits, and independent judgment of analysts of the Consultant.
(c) The Company hereby acknowledges that the Consultant, for services
rendered under this Agreement, makes no commitment whatsoever to make a market
in any of the Company's securities on any stock exchange or in any electronic
marketplace. Any decision by Consultant to make a market in any of the Company's
securities shall be based solely on the independent judgment of Consultant's
traders and related supervisory personnel.
(d) Use of the Consultant's name in annual reports or any other report
of the Company or releases by the Company must have the prior approval of the
Consultant unless the Company is required by law to include Consultant's name in
such annual reports, other report or release of the Company, in which event
Consultant will be furnished with copies of such annual reports or other reports
or releases using Consultant's name in advance of publication by the Company.
9. Severability. Every provision of this Agreement is intended to be
severable. If any term or provision hereof is deemed unlawful or invalid for any
reason whatsoever, such unlawfulness or invalidity shall not affect the validity
of this Agreement.
10. Miscellaneous.
(a) Any notice or other communication between parties hereto shall be
sufficiently given if sent by certified or registered mail, postage prepaid, or
faxed and confirmed if to the Company, addressed to it at Metropolitan Health
Networks, Inc., 000 Xxxxxxxxxx Xxxxxx, Xxxx Xxxx Xxxxx, XX 00000, or if to the
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Consultant, addressed to it at National Securities Corporation, 000 X. Xxxxxxxx
Xxx, Xxxxx 0000, Xxxxxxx, XX 00000. Such notice or other communication shall be
deemed to be given on the date of receipt.
(b) If the Consultant shall cease to do business, the provisions hereof
relating to duties of the Consultant and compensation by the Company as it
applies to the Consultant shall thereupon cease to be in effect, except for the
Company's obligation of payment for services rendered prior thereto. This
Agreement shall survive any merger of, acquisition of, or acquisition by the
Consultant and after any such merger or acquisition shall be binding upon the
Company and the corporation surviving such merger or acquisition.
(c) This Agreement embodies the entire agreement and understanding
between the Company and the Consultant and supersedes any and all negotiations,
prior discussions and preliminary and prior agreements and understandings
related to the central subject matter hereof.
(d) This agreement has been duly authorized, executed and delivered by
and on behalf of the Company and the Consultant.
(e) This Agreement shall be construed and interpreted in accordance
with the laws of the State of Florida, without giving effect to conflicts of
laws.
(f) There is no relationship of partnership, agency, employment,
franchise or joint venture between the parties. Neither party has the authority
to bind the other or incur any obligation on its behalf.
(g) This Agreement and the rights hereunder may not be assigned by
either party (except by operation of law) and shall be binding upon and inure to
the benefit of the parties and their respective successors, assigns and legal
representatives.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date hereof.
Metropolitan Health Networks
By:
Name:
Title
National Securities Corporation
By:
Name:
Title
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ANNEX A
INDEMNIFICATION
Recognizing that transactions of the type contemplated in this
engagement sometimes result in litigation and that National Securities
Corporation's ("National") role is advisory, Metropolitan Health Networks, Inc.
(the "Company") agrees to indemnify and hold harmless National, its affiliates
(including Olympic Cascade Financial Corporation) and their respective officers,
directors, employees, agents and controlling persons (collectively, the
"Indemnified Parties"), from and against any losses, claims, damages and
liabilities, joint or several, related to or arising in any manner out of any
transaction, proposal or any other matter (collectively, the "Matters")
contemplated by the engagement of National hereunder, and will promptly
reimburse the Indemnified Parties for all expenses (including reasonable fees
and expenses of legal counsel) as incurred in connection with the investigation
of, preparation for, or defense of any pending or threatened claim related to or
arising in any manner out of any Matter contemplated by the engagement of
National hereunder, or any action or proceeding arising therefrom (collectively,
"Proceedings"), whether or not such Indemnified Party is a formal party to any
such Proceeding. Notwithstanding the foregoing, the Company shall not be liable
in respect of any losses, claims, damages, liabilities or expenses that a court
of competent jurisdiction shall have determined by final judgment resulted
solely from the gross negligence or willful misconduct of an Indemnified Party.
The Company further agrees that it will not, without the prior written consent
of National, settle compromise or consent to the entry of any judgment in any
pending or threatened Proceeding in respect of which indemnification may be
sought hereunder (whether or not National or any Indemnified Party is an actual
or potential party to such Proceeding), unless such settlement, compromise or
consent includes an unconditional release of National and each other Indemnified
Party hereunder from all liability arising out of such Proceeding.
The Company agrees that if any indemnification or reimbursement sought
pursuant to this letter were for any reason not to be available to any
Indemnified Party or insufficient to hold it harmless as and to the extent
contemplated by this letter, then the Company shall contribute to the amount
paid or payable by such Indemnified Party in respect of losses, claims, damages
and liabilities in such proportion as is appropriate to reflect the relative
benefits to the Company and its stockholders on the one hand, and National on
the other, in connection with the Matters to which such indemnification or
reimbursement relates or, if such allocation is not permitted by applicable law,
not only such relative benefits but also the relative faults of such parties as
well as any other equitable considerations. It is hereby agreed that the
relative benefits to the Company and/or its stockholders and to National with
respect to National's engagement shall be deemed to be in the same proportion as
(i) the total value paid or received or to be paid or received by the Company
and/or its stockholders pursuant to the Matters (whether or not consummated) for
which National is engaged to render services bears to (ii) the fees paid to
National in connection with such engagement. In no event shall the Indemnified
Parties contribute or otherwise be liable for an amount in excess of the
aggregate amount of fees actually received by National pursuant to such
engagement (excluding amounts received by National as reimbursement of the
expenses).
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The Company further agrees that no Indemnified Party shall have any
liability (whether direct or indirect, in contract or tort or otherwise) to the
Company for or in connection with National's engagement hereunder except for
losses, claims, damages, liabilities or expenses that a court of competent
jurisdiction shall have determined by final judgment resulted solely from the
gross negligence or willful misconduct of such Indemnified Party. The indemnity,
reimbursement and contribution obligations of the Company shall be in addition
to any liability which the Company may otherwise have and shall be binding upon
and inure to the benefit of any successors, assigns, heirs and personal
representatives of the Company or an Indemnified Party.
The indemnity, reimbursement and contribution provisions set forth
herein shall remain operative and in full force and effect regardless of (i) any
withdrawal, termination or consummation of or failure to initiate or consummate
any Matter referred to herein, (ii) any investigation made by or on behalf of
any party hereto or any person controlling (within the meaning of Section 15 of
the Securities Act of 1933 as amended, or Section 20 of the Securities Exchange
Act of 1934, as amended) any party hereto, (iii) any termination or the
completion or expiration of this letter of National's engagement and (iv)
whether or not National shall, or shall not be called upon to, render any formal
or informal advice in the course of such engagement.
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