EXHIBIT 4.3
ADVISORY AND INVESTMENT BANKING AGREEMENT
This Agreement is made and entered into as of the [__]th day
of [____], 2000 by and between Xxxxxxx Xxxxxxxx Securities Corporation, a
Florida corporation ("Xxxxxxx") and Innovative Health Products, Inc., a Florida
corporation (the "Company").
In consideration of the mutual promises made herein and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
1. PURPOSE: The Company hereby engages Xxxxxxx for the term
specified in Paragraph 2 hereof to render consulting advice to the Company as an
investment banker relating to financial and similar matters upon the terms and
conditions set forth herein.
2. TERM: Except as otherwise specified in paragraph 4 hereof,
this Agreement shall be effective from [THE EFFECTIVE DATE] to [36 months
later].
3. DUTIES OF XXXXXXX: During the term of this Agreement,
Xxxxxxx shall seek out Transactions (as hereinafter defined) on behalf of the
Company and shall furnish advice to the Company in connection with any such
Transactions.
4. COMPENSATION: In consideration for the services rendered by
Xxxxxxx to the Company pursuant to this Agreement (and in addition to the
expenses provided for in Paragraph 5 hereof), the Company shall compensate
Xxxxxxx as follows:
(a) The Company shall pay Xxxxxxx a fee of
$3,000 per month during the term of this Agreement. The sum of $108,000 shall be
payable in full on the date of this Agreement. In the event that Xxxxxxx ceases
its business operations as a financial advisor and investment banker, materially
1
breaches or is unable to satisfy its performance obligations hereunder, then
Xxxxxxx shall repay to the Company the pro rata unearned portion of foregoing
fee, based on the number of months for which performance was delivered and the
remaining number of months in the term.
(b) In the event that any Transaction (as hereinafter
defined) occurs during the term of this Agreement or one year thereafter, the
Company shall pay fees to Xxxxxxx as follows:
(i) five percent (5%) of any consideration up to and including $1,000,000
paid pursuant to the Transaction, plus
(ii) four percent (4%) of any consideration from $1,000,001 up to and
including $2,000,000 paid pursuant to the Transaction, plus
(iii) three percent (3%) of any consideration from $2,000,001 up to and
including $3,000,000 paid pursuant to the Transaction, plus
(iv) two percent (2%) of any consideration from $3,000,001 up to and
including $4,000,000 paid pursuant to the Transaction, plus
(v) one percent (1%) of any consideration greater than $4,000,000 paid
pursuant to the Transaction.
For the purposes of this Agreement, "Consideration"
shall mean the total market value on the day of the closing of stock, cash,
assets and all other property (real or personal) exchanged or received, directly
or indirectly by the Company or any of its security holders in connection with
any Transaction. Any co-broker or brokers retained by Xxxxxxx shall be paid by
Kashner.
For the purposes of the Agreement, a "Transaction"
shall mean (a) any transaction originated by Xxxxxxx, whereby, directly or
indirectly, control of or a material interest in the Company or any of its
businesses or any of their respective assets, is transferred for Consideration,
or (b) any transaction originated by Xxxxxxx whereby the Company acquires any
other company or the assets of any other company or an interest in any other
company (an "Acquisition") or to so act.
In the event Xxxxxxx originates a line of credit with
a lender, the Company and Xxxxxxx will mutually agree on a satisfactory fee for
such services provided based upon reasonable and
2
customary practice in the industry and the terms of payment of such fee;
provided, however, that in the event the Company is introduced to a corporate
partner by Xxxxxxx in connection with a merger, Acquisition or financing and a
credit line develops directly as a result of the introduction, the appropriate
fee shall be the amount set forth in the schedule above with consideration to be
based upon the amount of the line of credit. In the event Xxxxxxx introduces the
Company to a joint venture partner or customer and sales develop as a result of
the introduction, the Company agrees to pay a fee of five percent (5%) of total
sales generated directly from this introduction during the first two years
following the date of the first sale, in lieu of the fees set forth in the
schedule above. Total sales shall mean cash receipts less any applicable
refunds, returns, allowances, credits and shipping charges and monies paid by
the Company by way of settlement or judgment arising out of claims made by or
threatened against the Company. Commission payments shall be paid on the 15th
day of each month following the receipt of customers' payment. In the event any
adjustments are made to the total sales after the commission has been paid, the
Company shall be entitled to an appropriate refund or credit against future
payments under this Agreement. All fees to be paid pursuant to this Agreement,
except as otherwise specified, are due and payable to Xxxxxxx in cash at the
closing or closings of any transaction specified in Paragraph 4 hereof. In the
event that this Agreement shall not be renewed or if terminated for any reason,
notwithstanding any such non-renewal or termination, Xxxxxxx shall be entitled
to a full fee as provided under Paragraphs 4 and 5 hereof, for any transaction
for which the discussions were initiated during the term of this Agreement and
which is consummated within a period of twelve months after non-renewal or
termination of this Agreement.
5. EXPENSES OF XXXXXXX: In addition to the fees payable
hereunder, and regardless of whether any transaction set forth in Paragraph 4
hereof is proposed or consummated the Company shall
3
reimburse Xxxxxxx for all fees and disbursements of Xxxxxxx'x counsel and
Xxxxxxx'x travel and reasonable out-of-pocket expenses incurred in connection
with and in direct furtherance of the services performed by Xxxxxxx pursuant to
this Agreement, including without limitation, hotels, food and associated
expenses and long-distance telephone calls. Xxxxxxx shall obtain the consent of
the Company before incurring any expense over $1,000.
6. LIABILITY OF XXXXXXX:
(a) The Company acknowledges that all opinions and
advice (written or oral) given by Xxxxxxx to the Company in connection with
Xxxxxxx'x engagement are intended solely for the benefit and use of the Company
in considering the transaction to which they relate, and the Company agrees that
no person or entity other than the Company shall be entitled to make use of or
rely upon the advice of Xxxxxxx to be given hereunder, and no such opinion or
advice shall be used for any other purpose or reproduced, disseminated, quoted
or referred to at any time, in any manner or for any purpose, nor may the
Company make any public references to Xxxxxxx, or use Xxxxxxx'x name in any
annual reports or any other reports or releases of the Company without Xxxxxxx'x
prior written consent.
(b) The Company acknowledges that Xxxxxxx makes no
commitment whatsoever as to making a market in the Company's securities or to
recommending or advising its clients to purchase the Company's securities,
except that Xxxxxxx has committed to make a market in the Company=s securities
for at least 45 days after the effective date of the Company=s initial public
offering. Research reports or corporate finance reports that may be prepared by
Xxxxxxx will, when and if prepared, be done solely on the merits or judgment of
analysis of Xxxxxxx or any senior corporate finance personnel of Xxxxxxx.
4
7. XXXXXXX'X SERVICES TO OTHERS: The Company acknowledges that
Xxxxxxx or its affiliates are in the business of providing financial services
and consulting advice to others. Nothing herein contained shall be construed to
limit or restrict Xxxxxxx in conducting such business with respect to others, or
in rendering such advice to others.
8. COMPANY INFORMATION:
(a) The Company recognizes and confirms that, in
advising the Company and in fulfilling its engagement hereunder, Xxxxxxx will
use and rely on data, material and other information furnished to Xxxxxxx by the
Company. The Company acknowledges and agrees that in performing its services
under this engagement, Xxxxxxx may rely upon the data, material and other
information supplied by the Company without independently verifying the
accuracy, completeness or veracity of same.
(b) Except as contemplated by the terms hereof
or as required by applicable law, Xxxxxxx shall keep confidential all material
non-public information provided to it by the Company, and shall not disclose
such information to any third party, other than such of its employees and
advisors as Xxxxxxx determines to have a need to know. Upon termination of this
Agreement, at the request of the Company, Xxxxxxx shall deliver to the Company
all non-public material in its possession relating to the business affairs of
the Company.
9. INDEMNIFICATION:
(a) The Company shall indemnify and hold Xxxxxxx and
its directors, officers, employees and agents harmless against any and all
liabilities, claims, lawsuits, including any and all awards and/or judgments to
which it may become subject under the Securities Act of 1933, as amended (the
"1933 Act"), the Securities Exchange Act of 1934, as amended (the "Act") or any
other federal or state statute, at common law or otherwise, insofar as said
liabilities, claims and lawsuits (including awards
5
and/or judgments) arise out of or are in connection with the services rendered
by Xxxxxxx or any transactions in connection with this Agreement, except for any
liabilities, claims and lawsuits (including awards judgments and related costs
and expenses), arising out of acts or omissions of Xxxxxxx. In addition, the
Company shall also indemnify and hold Xxxxxxx harmless against any and all
reasonable costs and expenses, including reasonable counsel fees, incurred or
relating to the foregoing. If it is finally judicially determined that the
Company will not be responsible for any liabilities, claims and lawsuits or
expenses related thereto, the indemnified party, by his or its acceptance of
such amounts, agrees to repay the Company all amounts previously paid by the
Company to the indemnified person and will pay all costs of collection thereof,
including but not limited to reasonable attorneys' fees related thereto.
Xxxxxxx shall give the Company prompt notice of any
such liability, claim or lawsuit which Xxxxxxx contends is the subject matter of
the Company's indemnification and the Company thereupon shall be granted the
right to take any and all necessary and proper action, at its sole cost and
expense, with respect to such liability, claim and lawsuit, including the right
to settle, compromise and dispose of such liability, claim or lawsuit, excepting
therefrom any and all proceedings or hearings before any regulatory bodies
and/or authorities.
Xxxxxxx shall indemnify and hold the Company and its
directors, officers, employees and agents harmless against any and all
liabilities, claims and lawsuits, including any and all awards and/or judgments
to which it may become subject under the 1933 Act, the Act or any other federal
or state statute, at common law or otherwise, insofar as said liabilities,
claims and lawsuits (including awards and/or judgments) arise out of or are
based upon Xxxxxxx'x gross negligence, useful misconduct, bad faith or any
untrue statement or alleged untrue statement of a material fact or omission at a
material fact required to be stated or necessary to make the statement provided
by Xxxxxxx, not
6
misleading, which statement or omission was made in reliance
upon information furnished in writing to the Company by or on behalf of Xxxxxxx
for inclusion in any registration statement or prospectus or any amendment or
supplement thereto in connection with any transaction to which this Agreement
applies. In addition, Xxxxxxx shall also indemnify and hold the Company harmless
against any and all costs and expenses, including reasonable counsel fees,
incurred or relating to the foregoing.
The Company shall give to Xxxxxxx prompt notice of
any such liability, claim or lawsuit which the Company contends is the subject
matter of Xxxxxxx'x indemnification and Xxxxxxx thereupon shall be granted the
right to a take any and all necessary and proper action, at its sole cost and
expense, with respect to such liability, claim and lawsuit, including the right
to settle, compromise or dispose of such liability, claim or lawsuit, excepting
therefrom any and all proceedings or hearings before any regulatory bodies
and/or authorities.
(b) In order to provide for just and equitable
contribution under the Act in any case in which (i) any person entitled to
indemnification under this Section 9 makes claim for indemnification pursuant
hereto but it is judicially determined (by the entry of a final judgment or
decree by a court of competent jurisdiction and the expiration of time to appeal
or the denial of the last right of appeal) that such indemnification may not be
enforced in such case notwithstanding the fact that this Section 10 provides for
indemnification in such case, or (ii) contribution under the Act may be required
on the part of any such person in circumstances for which indemnification is
provided under this Section 10, then, and in each such case, the Company and
Xxxxxxx shall contribute to the aggregate losses, claims, damages or liabilities
to which they may be subject (after any contribution from others) in such
proportion taking into consideration the relative benefits received by each
party from the offering covered by the prospectus with respect to any
transactions in connection with this Agreement (taking into account
7
the portion of the proceeds of the offering realized by each), the parties'
relative knowledge and access to information concerning the matter with respect
to which the claim was assessed, the opportunity to correct and prevent any
statement or omission and other equitable considerations appropriate under the
circumstances; provided, however, that notwithstanding the above in no event
shall Xxxxxxx be required to contribute any amount in excess of 10% of the
public offering price of any securities to which such Prospectus applies; and
provided, that, in any such case, no person guilty of a fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
Within fifteen (15) days after receipt by any party
to this Agreement (or its representative) of notice of the commencement of any
action, suit or proceeding, such party will, if a claim for contribution in
respect thereof is to be made against another party (the "Contributing Party"),
notify the Contributing Party of the commencement thereof, but the omission so
to notify the Contributing Party will not relieve it from any liability which it
may have to any other party other than for contribution hereunder. In case any
such action, suit or proceeding is brought against any party, and such party
notifies a Contributing Party or his or its representative of the commencement
thereof within the aforesaid fifteen (15) days, the Contributing Party will be
entitled to participate therein with the notifying party and any other
Contributing Party similarly notified. Any such Contributing Party shall not be
liable to any party seeking contribution on account of any settlement of any
claim, action or proceeding effected by such party seeking contribution without
the written consent of the Contributing Party. The indemnification provisions
contained in this Section 10 are in addition to any other rights or remedies
which either party hereto may have with respect to the other or hereunder.
8
10. XXXXXXX AS INDEPENDENT CONTRACTOR : Xxxxxxx shall perform
its services hereunder as independent contractors and not as employees of the
Company or an affiliate thereof. It is expressly understood and agreed to by the
parties hereto that Xxxxxxx shall have no authority to act for, represent or
bind the Company or any affiliate thereof in any manner, except as may be agreed
to expressly by the Company in writing from time to time.
11. MISCELLANEOUS:
(a) This Agreement between the Company and Xxxxxxx
constitutes the entire agreement and understanding of the parties hereto, and
supersedes any and all previous agreements and understandings, whether oral or
written, between the parties with respect to the matters set forth herein.
(b) Any notice or communication permitted or required
hereunder shall be in writing and shall be deemed sufficiently given if
hand-delivered or sent (i) postage prepaid by registered mail, return receipt
requested, or (ii) by facsimile, to the respective parties as set forth below,
or to such other address as either party may notify the other in writing:
If to the Company, to: Innovative Health Products
0000 Xxxxx Xxxxx Xxxx
Xxxxx, XX 00000
Attn: Xx. Xxxxx X. Xxxxxxxx
with a copy to: Sichenzia, Ross & Xxxxxxxx LLP
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxxxxx, Esq.
9
If to Xxxxxxx, to: Xxxxxxx Davidson Securities Corporation
00 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx Xxxxxxx
with a copy to:
(c) This Agreement shall be binding upon and inure to
the benefit of each of the parties hereto and their respective successors, legal
representatives and assigns.
(d) This Agreement may be executed in any number of
counterparts, each of which together shall constitute one and the same original
document.
(e) No provision of this Agreement may be amended,
modified or waived, except in a writing signed by all of the parties hereto.
(f) This Agreement shall be construed in accordance
with and governed by the laws of the State of [ ], without giving effect to
conflict of law principles. The parties hereby agree that any dispute which may
arise between them arising out of or in connection with this Agreement shall be
adjudicated before a court located in [ ], and they hereby submit to the
exclusive jurisdiction of the courts of the State of Florida located in [ ] and
of the federal courts in the [ ] District of [ ] with respect to any action or
legal proceeding commenced by any party, and irrevocably waive any objection
they now or hereafter may have respecting the venue of any such action or
proceeding brought in such a court or respecting the fact that such court is an
inconvenient forum, relating to or arising out of this Agreement, and consent to
the service of process in any such action or legal proceeding by means of
registered or certified mail, return receipt requested, in care of the address
set forth in Paragraph 11(b) hereof.
10
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, as of the day and year first above written.
XXXXXXX DAVIDSON SECURITIES CORPORATION
By:________________________________
INNOVATIVE HEALTH PRODUCTS, INC.
By:________________________________
