EXHIBIT 10.37
CONSULTING AND ASSISTANCE AGREEMENT
THIS AGREEMENT dated this 15th day of July, 1999 by and between SURGICAL SAFETY
PRODUCTS, INC., a Florida corporation with a principal place of business at 0000
Xxx Xxxxxxx, Xxxxxxxx, Xxxxxxx 00000 (hereinafter the "Company"), and Triton
Capital, Inc., a Florida corporation with a principal place of business at 0000
Xxxxxxxxxx Xxxxx, Xxxxx Xxxxxxx, XX. 00000 (hereinafter "Consultant").
WITNESSETH:
WHEREAS, Consultant is, inter alia, engaged in the business of
identifying, reviewing, analyzing, structuring and implementing various and
diverse business and financial relationships and transactions on behalf of its
clients;
WHEREAS, the Company has expressed an interest in retaining Consultant,
on a non-exclusive basis, to provide consulting services in connection with the
review, analysis, structure and, if feasible, implementation of various and
diverse business and financial relationships and transactions; and
WHEREAS, Consultant is prepared to use its best efforts, expertise and
network of clients and contacts to provide said consultation services to the
Company.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and for other good and valuable consideration, the receipt and adequacy
of which is hereby acknowledged, the parties agree as follows:
1. Engagement
1.1 The Company hereby engages Consultant, and Consultant hereby accepts to
become engaged by the Company, as a Consultant to seek to "assist" (as such
term is hereinafter defined) the Company in accomplishing the following
tasks:
1.1.1 initially raise equity or debt financing in an amount up to Six Million
($6,000,000.00) Dollars, either in lump sum or in staged financing, as
the case may be, and to thereafter raise equity or debt financing as
the Company may request ("Investment Financing");
1.2 For the Purpose of this Agreement, as it concerns Consultant's activities,
"assist" will mean the introduction of a party to the Company, as evidenced
in a writing from Consultant, from whom the Company has not previously
obtained investment or trade financing, with whom the Company is not
presently in negotiation for such financing or with whom the Company
otherwise has not done business and, at the request and direction of the
Company, to assist the Company in structuring and negotiating an
arrangement with such a party. If the Company obtained or obtains financing
from, is or was in negotiation with any party introduced by Consultant or
otherwise has done or is doing business with such a party, the Company will
provide evidence of such prior business to Consultant upon its written
notification to the Company.
1.3 Scope of Services and Non-Exclusivity. It is understood and agreed between
the parties that:
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1.3.1 Consultant will work in concert with the Company and, at each time at
the Company's request, to identify sources of capital and potential
business relations, with the objective of arranging meetings and
thereafter, at the Company's request and expense, participate in such
meetings, for:
1.3.1.1 Investment Financing by such parties as venture capital firms,
institutional and strategic investors, investment banks and
others potentially interested in effecting or facilitating an
investment into the Company;
1.3.2 The Company will use its best efforts to assist and cooperate with
Consultant in the performance of its duties hereunder, including
promptly providing all information and documentation reasonably
requested by Consultant;
1.3.3 Consultant may provide its services at those times (day or evening) and
from those locations (via telephone, telefax and/or e-mail) as mutually
agreed between Consultant and the Company; and
1.3.4 The Company may engage other third parties to assist it in raising
and/or providing investment or trade financing and arranging business
arrangements.
2. Success Fee:
2.1 The Company will be free to accept or reject any prospective Business
Arrangement Consultant proposes by so notifying Consultant in writing.
3. Investment Financing Success Fee:
3.1 In the event Investment Financing is secured, the Company will pay
compensation equal to eight percent (8%) of the amount of equity or debt
raised as a Success Fee to the person or entity placing such equity or
debt; provided that such person or entity is qualified to receive such
compensation in the state of residence, incorporation or principal place of
business, as applicable, of the investor and in addition, if warrants are
granted to the investor, the Company will grant warrants to purchase
100,000 shares of the Company's Common Stock for each $1 million funded,
exercisable at any time up to the last business day of the sixtieth (60th)
month from the date of issue which will provide that such person or entity
will have the right to acquire restricted common stock of the Company at an
exercise price equal to that of the closing bid price of the Company's
shares on the date of the completion of the transaction, which warrants
shall contained provisions for "piggy-back" registration rights and rights
for cashless exercise. The said warrants and underlying securities will be
issued to such person or entity subject to usual and standard restrictions,
such as restrictions pursuant to Rule 144 under the Securities Act of 1933,
as amended (the "Act"), and will contain the same rights and privileges as
granted to the investor.
3.2 The Company will be free to accept or reject any prospective Investment
Financing Consultant proposes by so notifying Consultant in writing.
Notwithstanding anything to the contrary contained herein, if the Company
enters into an arrangement for Investment Financing within one hundred
eighty (180) days following its written notice of rejection on terms and
conditions less favorable to the Company (excluding computation of the
Success Fee), the Company will pay the person or entity to whom
compensation would have been paid the sum of _____________ Dollars
($_________) at each such closing thereon.
4. Conflict. The Company expressly understands that Consultant and/or its
managers, partners, shareholders, officers, directors, affiliates or
representatives may have an ownership interest in, be
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a director or officer of, or otherwise be in a contractual relationship
with a party (i) from whom the Company may obtain Investment Financing or
Trade Financing, (ii) with whom the Company may enter into a Business
Arrangement, or (iii) from whom Consultant may receive compensation
independent of, and in addition to, the Success Fee due and payable
pursuant to this Agreement. The Company hereby expressly waives any and all
direct or indirect conflict that may arise from any such relationships;
provided that in each instance the Company has been informed of its
existence.
5. Expenses. Forthwith upon its submission of an invoice therefor to the
Company, the Company will reimburse Consultant for any pre-approved
disbursements or expenses advanced by Consultant on behalf of the Company
in the performance of this Agreement.
6. Confidentiality and Non-Circumvention.
6.1 Each party will treat information provided by the other party pursuant to
this Agreement as confidential ( as it relates to the Company, the
"Confidential Information"; as it relates to Consultant, the "Confidential
Contacts"). The recipient thereof will not, directly or indirectly (a)
transfer or disclose any Confidential Information or Confidential Contacts,
as the case may be, to any third party (other than its representatives as
hereinafter provided or otherwise as required by law), (b) use any
Confidential Information or Confidential Contacts, as the case may be, for
any purpose other than for its representatives' information and assessment
without the prior written approval of the disclosing party.
6.2 As used herein:
6.2.1 as it relates to the Company, "Confidential Information" will include,
regardless of the medium, all confidential and proprietary information
so marked when disclosed, including financial data, research, know-how,
test data, technology, and other trade secrets relating to the Company,
furnished or made available by the Company. Notwithstanding the
foregoing, the Company's Confidential Information will not include
information which Consultant can evidence was prior to its receipt (i)
in the public domain (other than as a result of a breach of this
Agreement), (ii) in Consultant's possession, or (iii) independently
known through a party other than the Company, which party has no duty of
confidentiality and otherwise has the right to disclose same; and
6.2.2 as it relates to Consultant, "Confidential Contacts" will include any
person, firm or entity with whom Consultant has contact or done business
except any Confidential Contact from whom the Company can evidence it
has previously obtained Investment Financing or Trade Financing or with
whom it has otherwise done business, as the case may be, prior to the
date Consultant makes such Confidential Contact available to the Company
6.3 Except as specifically agreed to in writing between the parties, the
Company agrees it will not, directly or indirectly, without first having
obtained Consultant' written consent, which consent shall not be
unreasonably withheld: (i) negotiate or enter into, or attempt to negotiate
or enter into, any agreement, covenant or understanding, written or oral,
with any Confidential Contacts in regard to Investment Financing, Trade
Financing or Business Arrangements; or (ii) advise others to utilize
Confidential Contacts for investment or trade finance or business
arrangements; or (iii) interfere with, circumvent, frustrate or otherwise
impede in any manner the relationship of Consultant with any Confidential
Contacts.
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6.4 The permitted recipient of any Confidential Information and Confidential
Contacts, as the case may be:
6.4.1 will take all necessary or appropriate action to (i) protect the
Confidential Information or the Confidential Contacts, as the case may
be, which standard of protection will be no less stringint than it takes
to protect its own proprietary and confidential information, and (ii)
prevent its employees, agents and/or representatives from acting in a
manner inconsistent with the terms of this Agreement; and
6.4.2 may disclose same to its employees, agents and/or representatives having
a need for access thereto by virtue of his/its employment or engagement
by recipient, and who/which have been instructed as to, and have agreed
to be bound by, the terms and conditions of this Agreement prior to the
disclosure of the Confidential Information or Confidential Contacts,
as the case may be.
7. Equitable Relief. Each party hereto agrees that any violation of this
Agreement by one party may result in irreparable injury to the other party,
because the Confidential Information, as it concerns the Company, and the
Confidential Contacts, as it concerns Consultant, and the fruits thereof,
are valuable in ways not susceptible to full and accurate valuation or have
an adequate remedy at law in the event the other party breaches the
provisions of this Agreement. Accordingly, the Company and Consultant, as
the case may be, may be entitled to injunctive relief or other equitable
remedy to prevent, curtail or enforce any such breach, threatened or
actual, or the performance of this Agreement. The foregoing will be in
addition, and without prejudice, to such other rights as the Company and
Consultant may have at law or in equity. The parties each acknowledge and
agree that the covenants contained herein are necessary for the protection
of the other party's legitimate business interest, and are reasonable in
scope.
8. Indemnification. The Company and Consultant will indemnify and hold each
other and their respective directors, employees, agents and controlled and
controlling persons, harmless from and against any and all losses, claims,
damages, liabilities and expenses, joint or several, including all
reasonable fees and expenses of counsel, whether or not resulting in any
liability relating to or arising from any acts taken by Consultant and the
Company, as the case may be, for the other pursuant to this Agreement;
provided, however, that neither the Company no Consultant will be
responsible for any losses, claims, damages, liabilities or expenses
relating to or arising from the other's negligence or wrongdoing. Nothing
in this Agreement will be interpreted to create an agency between the
Company and Consultant, nor will Consultant or the Company act in any
manner to bind the other vis-a-vis third parties without first having
obtained the other party's written consent.
9. Termination.
9.1 Either party may terminate this Agreement upon five (5) days prior written
notice to the other party. As of the date that termination of this
Agreement becomes effective:
9.1.1 Consultant will forthwith cease to perform its duties hereunder;
9.1.2 The Company will continue to be obligated to pay, or to complete
the payment, when due of each Success Fee; to grant warrants due or to
become due and owing to Consultant or
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other person or entity for it services rendered prior to termination of
this Agreement and to pay any outstanding invoices for approved expenses
and
9.1.3 Notwithstanding anything to the contrary contained herein, the previsions
of this Agreement relating to the payment of fees, the granting of
warrants, the payment of expenses, confidentiality, and each of their
enforcement, indemnification and evidence of transactions will survive
termination of this Agreement.
10. Evidence of Transactions. The Company will provide Consultant with evidence
of any potential or completed transaction relating to this Agreement
forthwith and will keep Consultant appraised of all communications relating
to such transaction.
11. Arbitration.
11.1 Any controversy or dispute arising out of or in connection with this
Agreement, or the breach thereof ("Dispute"), will be settled by binding
arbitration conducted in accordance with the Commercial Arbitration Rules
of the American Arbitration Association ("AAA") in effect at that time. Any
such arbitration will take place in Florida before (1) arbitrator; however,
if the parties hereto disagree as to such appointment, the arbitration will
be before three (3) arbitrators, one of whom is to be designated by the
Company, one by Consultant and the third by the two arbitrators so
designated. All of the arbitrators so designated will be from any list or
panel published by the AAA. The decision by the arbitrators will state the
reasons for the award, and will be binding and conclusive upon the parties,
their successors and assigns, all of whom will comply with such decision in
good faith as if it were a final decision of a court. Each party hereby
submits itself to the jurisdiction of the appropriate courts in the city
designated for the arbitration for the entry of judgment with respect to
the decision of the arbitrators hereunder. Notwithstanding the foregoing,
judgment upon the award may be entered in any court having jurisdiction
thereof.
11.2 The arbitrators will have the power to (i) order the production of
documents under the AAA Rules by one party for inspection and reproduction
by the other party, (ii) in addition to damages and other remedies
available at law, grant preliminary and/or permanent injunctive relief, and
(iii) order specific performance and/or other equitable relief.
12. Costs.
12.1 In the event of a Dispute leading to arbitration as set forth hereinabove,
the losing party will reimburse the prevailing party its "Costs" (as
hereinafter defined). As used herein, the term "Costs" will include
reasonable attorneys' fees and costs of arbitration, recovery of a money
award and other relief (including, but not limited to, settlement
negotiations). The arbitrators will, in the first instance, include Costs
of the arbitration in the award, and the arbitrators will adjudge any other
Costs on the basis of the Dispute as a whole.
12.2 If the arbitrators determine that: (i) neither party prevailed, each party
will bear its own Costs; or (ii) if a party only partially prevailed, such
partially prevailing party will be awarded a pro-rata portion of its Costs.
13. Notice. Any notice or other communication required or authorized to be
given by either party to the other hereunder will be deemed given by either
party to the other hereunder when received in writing, either personally or
by registered mail, telex, telegraph, cable or telefax (postage or other
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charges prepaid), addressed as first above written or to such other address
as a party has given notice under this paragraph.
14. Entire Agreement. This Agreement contains the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof, and merges and supercedes all prior discussions and writings with
respect hereto. No modifications or alterations of this Agreement or waiver
of any of its provisions will be effective unless made in writing, and
signed by each party hereto.
15. Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of Florida.
16. Cooperation. Each party hereto agrees to execute all documents and take
such actions as are appropriate or may be reasonably requested by the other
party so as to effectuate the terms and discharge the responsibilities of
such party under this Agreement.
17. Miscellaneous. This Agreement may be executed in counterparts. No
representations relating to the subject matter of this Agreement have been
made or relied upon by any party that is not set forth herein. This
Agreement may not be assigned by either party without the prior written
consent of the other party. The invalidity or unenforceability of any
particular provision of this Agreement will not affect the other
provisions, and this Agreement will be construed in all respects as if such
invalid or unenforceable provision were omitted.
WHEREFORE, the parties hereto have executed this Agreement as of the date
first above written.
SURGICAL SAFETY PRODUCTS, INC.
By: /s/ Xxxxx Xxxxx
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Xxxxx Xxxxx,
President & CEO
TRITON CAPITOL, INC.,
Consultant
By: /s/Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx
President
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