EXHIBIT 10.2
American United Global, Inc.
June 16, 2003
Xxxxxx Holdings, LLC
000 Xxxxxxx Xxxxxx - 0xx Xxxxx
Xxx Xxxx, XX 00000
Re: Finders Agreement
Dear Xx. XxXxxx,
This is to acknowledge and confirm the terms of our mutual agreement and
understanding.
American United Global, Inc. (the "Company") hereby acknowledges that
Xxxxxx Holdings, LLC ("Xxxxxx") was and is the finder in the transactions
consummated on this date between the Company, Lifetime Healthcare Services, Inc.
("Lifetime") and New York Medical, Inc. ("NYMI"). In connection therewith, the
Company acknowledges that Xxxxxx has (a) introduced Lifetime to the Company, (b)
been instrumental in introducing NYMI to Lifetime, and (c) assisted in
consummating the purchase and merger, to NYMI, Lifetime and the Company
(collectively, the "Transactions") and that the Fee described herein is due and
owed as of this date.
As consideration for Xxxxxx' services hereunder, the Company shall pay to
Xxxxxx a finders fee (the "Fee") of up to $388,800, payable as follows:
(a) Until such time as the Company shall have arranged to make
payments of approximately $4,662,830 to retire all indebtedness due under
the "Xxxxxx Note" and $2,000,000 of principal amount of the "Note" (as
those terms are defined in the stock purchase agreement, dated March 21,
2003, between Redwood Investment Associates, L.P. and Lifetime Healthcare
Services, Inc., as amended to date (the "Purchase Agreement")), the Company
shall pay to Xxxxxx the Fee at the rate of $8,700.00 per month;
(b) Upon payment in full of the Xxxxxx Note and not less than
$2,000,000 due and payable on the Note (the "Payment Events"), the monthly
Fee shall be increased to $23,700.00 per month, and shall continue to be
paid on the first day of each month following the Payment Events until such
time as Xxxxxx shall have received total Fees aggregating $388,800.00.
In the event that for any reason, the Sale of NYMI (as such term is defined
in the Purchase Agreement) has occurred, the Fee shall be reduced to $328,800
but shall continue to be paid at the rate of $8,700.00 per month.
The obligations to make the payments of the Fee are absolute and
unconditional and not subject to any defense, set-off, counterclaim, rescission,
recoupment or adjustment whatsoever.
If Xxxxxx shall be required institute any action to enforce the collection
of any amount of the Fee or Default Interest thereon, there shall be immediately
due and payable from the Company, in addition to the then unpaid sum of this Fee
(together with accrued interest), all reasonable costs and expenses incurred by
the Xxxxxx in connection therewith, including, without limitation, reasonable
attorneys' fees and disbursements.
The Company shall have the right at its sole discretion to prepay this Fee
in whole or in part, at anytime without premium, discount or penalty.
In the event of and immediately upon the occurrence of any of the following
events (an "Event of Default"), the entire accrued and unpaid Fee shall become
immediately due and payable without any action by Xxxxxx:
(a) If the Company shall be in default of the payment of any monthly
installment of the Fee and such default shall continue for more than five
(5) business days after notice from Xxxxxx to the Company;
(b) If the Company makes a general assignment for the benefit of
creditors or commences (as the debtor) a case in bankruptcy, or commences
(as the debtor) any proceeding under any other insolvency law; or
(c) a case in bankruptcy or any proceeding under any other insolvency
law is commenced by or against the Company (as the debtor) and a court
having jurisdiction enters a decree or order for relief against Company as
the debtor in such case or proceeding, or such case or proceedings
consented to by the Company or remains undismissed for 60 days, or the
Company consents or admits the material allegations against it in any such
case or proceeding; or
(d) a trustee, receiver or agent (however named) is appointed or
authorized to take charge of substantially all of the property of the
Company for the purpose of general administration of such property for the
benefit of creditors and the order making such appointment or granting such
authorization is not vacated within 60 days, during which period such
trustee, receiver or agent shall not have taken any action with respect to
the property of the Company which might prejudice the interest of Xxxxxx
hereunder.
If an Event of Default occurs and is continuing, Xxxxxx may pursue any
available remedy to collect the payment of all amounts due under this Fee or to
enforce the performance of any provision of this Fee. No waiver of any default
hereunder shall be construed as a waiver of any subsequent default, and the
failure to exercise any right or remedy hereunder shall not waive the right to
exercise such right or remedy thereafter.
Headings of the various paragraphs of this Fee are for convenience of
reference only and shall in no way modify any of the terms or provisions of this
Fee.
Any notice required or permitted to be given hereunder shall be deemed to
have been duly given when (a) personally delivered or (b) one business day after
being sent by a nationally recognized overnight courier service with written
confirmation of delivery and all delivery fees prepaid or (c) three business
days after being mailed certified or registered U.S. mail, return receipt
requested, postage and certified or registered mail fees, as the case may be,
prepaid, and addressed to the receiving party at its last known address.
This agreement and the obligations of the Company and the rights of Xxxxxx
hereunder shall be governed by and construed in accordance with the laws of the
State of New York applicable to contracts made and to be performed entirely
within such state, without giving effect to the principles thereof relating to
the conflict of laws.
This agreement supercedes in its entirety all agreements and
understandings, written or oral, among the Company, Lifetime, Xxxxxx and/or its
affiliates with respect to the subject matter hereof, including without
limitation, a finders agreement between Xxxxxx and Lifetime, dated March 27,
2003 (collectively, the "Prior Agreements") and all such Prior Agreements are
hereby rendered null and void, ab initio.
If the foregoing accurately reflects our mutual agreement and
understanding, please so indicate by executing a copy of this agreement in the
space provided below.
AMERICAN UNITED GLOBAL, INC.
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx,
President
XXXXXX HOLDINGS, LLC
By: /s/ Xxxxxx XxXxxx
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Xxxxxx XxXxxx
President
