EXHIBIT 2
PROFESSIONAL SERVICES AGREEMENT
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THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made this Friday,
June 8th, 2001 by, and between, Synthetic Blood International, Inc. located at
0000 Xxxxxx Xxx. Xxxx.X, Xxxxx Xxxx, XX 00000 ("Company") and Xxxxxxx X.
Xxxxxxxx (SRL)or his assigned Corporation, Sidhis Inc., with its principal
office located at Xxx Xxxx Xxxxx, Xxxxx 000, Xxxxxx, XX 00000.
WHEREAS, SRL provides services in connection with assisting various
businesses to locate a suitable funding source for its business ("Company
Funding Services");
WHEREAS, Company desires to retain SRL to provide Company Funding
Services to Company and SRL desires to provide such Company Funding Services;
WHEREAS, Company is endeavoring to obtain funding of approximately Ten
Million Dollars ($10,000,000.00) or more, in order to further develop and to
enhance its business. Company contemplates that the funding for its business may
be in form of equity participation, credits, debt, convertible debt, sub-debt,
hybrid senior debt, mezzanine, bridge loans, merger or sale, warrants, options,
or a combination thereof. The business of the Company shall be hereinafter
referred to as the "Venture;" and
WHEREAS, Company also desires the assistance of SRL in locating an
appropriate funding source for the "Venture" and SRL desires to render such
assistance.
NOW THEREFORE, in consideration of the foregoing and of the mutual
covenants and conditions contained herein, the parties hereto agree as follows:
I. Company Funding Services
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1.1 SRL's Funding Duties. SRL shall use its best efforts to assist
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the Company in structuring itself so as to make itself attractive
to various types of prospective funding sources in order to
obtain funding for the Venture and to introduce Company to
various prospective funding sources. In this regard, SRL shall,
to the extent that SRL deems it advisable:
(a) Review and analyze the Company's capital structure, funding
needs, existing business and business plan in order to assist
Company in determining the type and amount of funding required by
the Company for the Venture;
(b) Advise the Company as to the types of funding sources generally
available;
(c) Make recommendations to Company as to the manner in which the
Company can position and structure itself, if appropriate, in
order to maximize its attractiveness to various types of funding
sources;
(d) Introduce the Company to various potential funding sources for
the Venture. Potential funding sources introduced to Company by
SRL shall be hereinafter referred to as "Funders". Funders may
include any, or all, of institutional lenders and investors,
private lenders and investors, angel investors, venture
capitalists, investment bankers, merchant bankers, financial
planners, and broker dealers;
(e) Assist the Company in evaluating any offer, which is received
from a Funder and in determining whether to accept any such
offer; and
(f) Assist the Company in negotiating and reaching agreement with any
selected
Funder (to the extent requested by Company).
1.2 Duties of Company. The Company shall be solely responsible for
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the decision as to whether to accept any offer from any funding
source. Company shall be under no obligation to accept any offer
or to close any offer of any Funder.
1.3 Introduction. SRL shall be deemed to have introduced a Funder to
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Company if the Funder's name was provided to Company by SRL as a
potential funding source and SRL initially advised Funder of the
Company's need for funding for the Venture or of the Company. The
introduction shall be deemed to be made at the point that SRL
first provides Funder's name to Company as a potential funding
source.
1.4 Funder Lists. SRL shall provide Company with a detailed list,
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which shall be attached hereto as Exhibit "A", of each
potentially interested Funder which has been contacted by SRL,
within thirty (30) days of such prospective Funder expressing an
interest in the Venture. The Company may solicit any potential
funding source which it deems appropriate, without the consent of
SRL, except those Funders which have been previously contacted by
SRL.
1.5 Use of Materials. In contacting potential Funders, SRL shall have
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the right to utilize the information concerning the Venture,
which has been imparted to it by Company and the information
contained in the materials which the Company is preparing for
SRL's use in connection with locating a potential Funder. SRL
acknowledges that any Company trade secret or "Proprietary
Information" imparted to SRL by the Company regarding the Venture
is to be used only in connection with the location of a potential
funding source for the Company and may be disclosed to any such
potential funding source. However, such Proprietary Information
shall only be disclosed in accordance with the terms of this
Agreement and SRL shall not disclose any such Proprietary
Information to any third party other than a prospective Funder,
or to an agent, representative, employee, or officer of a
prospective Funder, without the consent of Company. Company
represents that all Proprietary Information provided by Company
to SRL is true and accurate.
1.6 Term. The term of the Company Funding Services portion of this
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Agreement shall be for a period of six (6) months from the date
of this Agreement. Notwithstanding a prior commencement of the
term of this Agreement. SRL shall be fully compensated for any
funding provided by a Funder as long as the agreement to provide
such funding is reached within the greater of one year of the
termination of this Agreement or eighteen (18) months of SRL's
advising the Company of the Funder as a potential funding source.
1.7 Compensation. SRL shall receive Four Percent (4%) of the gross
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proceeds to the Company of any funding actually received from a
Funder, without regard to the form or amount thereof, as a fee
for the Company Funding Services as provided under this Article
I. This four percent (4%) of the gross proceeds to the Company of
funding received from a Funder shall be payable in cash. SRL
shall receive such fee if one or more Funders provide funding to
finance all, or a portion, of the Venture on terms which have
been accepted by Company. Such fee shall be paid in connection
with all funding provided during the term of this Agreement as
extended under Section 1.6
In addition, the Company shall grant SRL warrants exercisable
within seven (7) years to purchase shares of the Company`s common
stock equal to four (4%) percent of the shares provided to the
Funding Sources in consideration of the funding at an exercise
price equal to the price per share to be paid for similar stock
by the Funder in connection with the funding process.The warrant
and the stock acquired pursuant to the exercise of same shall
bear the same registration rights afforded to any warrant or
stock obtained by the Funder in connection with the funding
process. However, the warrant shall be issued and
the exercise price shall be determined at the time of financing.
The amount of funding provided by any Funder shall be, for
purposes of this Agreement, deemed to include funding provided by
any party which the Funder may introduce to the transaction,
including individual and institutional investors.
The Company shall pay SRL a non-refundable retainer of Ten
Thousand Dollars ($10,000.00) payable upon execution of this
Professional Services Agreement, which will be deducted from the
compensation received by SRL at close of funding.
1.8 Expenses. Any required travel and related expenses in connection
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with a meeting with a potential Funder which meeting shall be
attended by the Company and SRL shall be paid by the Company.
Such expenses shall be subject to the prior written consent of
Company.
1.9 Best Efforts. SRL shall use its reasonable best efforts to locate
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an appropriate funding source for the Venture. However, there can
be no assurance that SRL will be successful in locating such a
funding source acceptable to the Company.
II General Provisions
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2.1 Entire Agreement; Amendment. This Agreement contains the entire
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agreement between these parties with respect to the subject
matter hereof and there are no promises, covenants, or
representations, which are not contained herein. This Agreement
may not be amended or modified except in a written document
executed by both of the parties hereto. This Agreement shall be
binding upon and shall inure to the benefit of the successors and
assigns of the parties hereto.
Nothing in this Agreement shall be interpreted to provide that
SRL and the Company are partners, joint ventures or assignees of
the other. SRL shall remain an independent contractor providing
services to the Company.
2.2 Notices. All notices under this Agreement shall be in writing and
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shall be served by personal service, or registered mail, return
receipt requested. Notice by mail shall be addressed to each
party at its address as set forth above. Either party may notify
the other party of a different address to which notices shall be
sent in writing to the then current address.
2.3 Governing Law. This Agreement shall be governed by, and construed
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under the laws of the state of California. The invalidity or
unenforceability of any provision of this Agreement will in no
way offset the validity or enforceability of any other provision.
2.4 Indemnification. Company shall indemnify and hold harmless SRL,
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and each of its agents, employees and representatives from, and
against, any and all losses, claims, damages and liabilities,
joint or several, including attorney's fees, to which any of such
person may become subject insofar as such losses, claims, damages
or liabilities arise out of, or are based upon, any act or
omission of Company which may constitute a violation of any
federal or state securities laws. Company shall also indemnify
and hold harmless SRL, and each of its agents, employees and
representatives from, and against, any and all losses, claims,
damages, and liabilities, joint or several, including attorney's
fees, to which any such person may become subject insofar as such
losses, claims, damages or liabilities arise out of, or are based
upon, the truthfulness or accuracy of any information provided by
Company to SRL.
2.5 Confidentiality. This Agreement and its contents, including
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Exhibit "A", will be treated by the Company as Confidential
Information of SRL. Any advice rendered by SRL
pursuant to this agreement is also Confidential Information.
Confidential Information may not be disclosed publicly in any
manner without SRL's prior written approval.
2.6 Arbitration. Any dispute arising under, or relating to, this
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Agreement shall be resolved by binding arbitration before the
American Arbitration Association in Orange County, California
under the then-prevailing rules of the Association. In any such
arbitration the prevailing party shall be awarded its reasonable
attorneys fees.
IN WITNESS WHEREOF, the parties hereunto have executed the Agreement on the
day and year set forth below.
By:____________________________________________ Date:_____________________.
("SRL") Xxxxxxx X. Xxxxxxxx
By:____________________________________________ Date:______________________
("Company") Synthetic Blood International, Inc.
President / CEO-Xxxxxx Xxxxxx
