CONSULTING AND ACQUISITION MANAGEMENT AGREEMENT
Agreement made this 7th day of January 1997 by and between Aquagenix,
Inc., a Florida corporation ("Company") and Xxxxxxx & Associates, Inc. a
Florida corporation ("Xxxxxxx").
Whereas, Company desires to engage the services of Xxxxxxx in order to
identify, evaluate and structure mergers, consolidations, acquisitions, joint
ventures and strategic alliances (collectively referred herein as
"Acquisitions") and to provide certain financial public relations services for
Company ;
Whereas, Xxxxxxx desires to perform such services on behalf of the
Company; and
Whereas, the parties desire to set forth the terms and conditions of such
consulting arrangement;
Now Therefore, in consideration of the mutual promises contained herein
and intending to be legally bound hereby, the parties agree as follows:
0.XXXXXXXXXX SERVICES.
1.1 Company hereby agrees to retain Xxxxxxx as a consultant to assist
the Company in the identification, evaluation, structuring, negotiating and
closing of business acquisitions for the account of Company upon such terms and
conditions as are reasonably acceptable to Company. Notwithstanding anything to
the contrary contained herein, each Acquisition shall be subject to the approval
of the Company, which approval may be withheld or delayed for any reason in the
Company's sole and absolute discretion.
1.2 Xxxxxxx shall, in connection with each proposed Acquisition
assist the Company as requested in the consummation of the transaction. If any
Acquisition is completed by the Company or an affiliate during the term of this
Agreement, Xxxxxxx shall be entitled to the fees set forth in subparagraph 3.2
hereof.
1.3 Xxxxxxx, in addition, agrees to assist and advise the Company in its
financial public relations by working with outside entities as directed by the
Company.
2.TERM.
This Agreement shall be for a term of three (3) years from the
date hereof. However, the Agreement may be terminated by either party on the
annual anniversary date of this Agreement upon thirty (30) days prior written
notice.
3.COMPENSATION.
The Company shall pay the following compensation to Xxxxxxx in
consideration of the services to be rendered hereunder:
3.1 A monthly fee of one thousand ($1,000.00) dollars during the term of
this Agreement. Such fee shall include normal out of pocket expenses incurred by
Xxxxxxx. Any extraordinary expenses for which Xxxxxxx desires to be reimbursed
must be approved in advance by the Company;
3.2 Upon the consummation of each Acquisition by the Company or an
affiliate, a fee of three (3%) per cent of the Aggregate Market Value (as
defined) of the Acquisition to be paid in cash or registered shares of the
Company 's common stock at the sole discretion of the Company.
3.3 Aggregate Market Value means (i) in the event that the Company, or
its stock is acquired, the number of fully diluted shares of the Company's
common stock so acquired times the fair market value per share of the cash paid
and/or the securities issued by the acquiring party, (ii) in the event that the
Company acquires another entity , or its stock, the fair market value of the
cash paid and/or the securities issued by the Company for such other entity's
common stock, and (iii) in the event of an Acquisition of the Company's assets,
or an Acquisition by the Company of assets of another entity, the fair market
value of the pre-tax consideration received or paid (as the case may be) by the
Company including assumption of indebtedness. For the purposes of this
Agreement, the fair market value of equity and debt securities will be
determined based upon (i) the closing sale price for such securities in the
registered national securities exchange providing the primary market in such
securities on the last trading day prior to the closing date of the Acquisition
or other transaction, (ii) if such securities are not so traded, the average of
the closing bid prices as reported by the Nasdaq for the previous ten(10)
consecutive trading days prior to closing, or (iii) if such securities are not
so traded or reported, as determined in good faith estimate of the Board of
Directors of the Company.
3.4 In the event this Agreement is terminated or expires, the provisions
of subparagraphs 3.2 and 3.3 shall be in effect for a period of one year from
such termination date; and with respect to any Acquisitions introduced by
Xxxxxxx to the Company for a period of two years from the termination date.
3.5 Upon the execution of this Agreement the Company shall xxxxx Xxxxxxx
options to purchase three hundred thousand (300,000) shares of the Company's
common stock, such options to be effective as of January 7,1997 and exercisable
for a period of three years from that date at a price of $7.00 per share. Upon
the exercise of these options by Xxxxxxx, the Company shall register the
underlying shares within ninety (90) days from such exercise.
3.6 In addition, the Company shall xxxxx Xxxxxxx two hundred twenty-five
thousand (225,000) options to purchase shares of the Company's common stock at
$6.00 per share, such options shall be exercised within sixty (60) days of the
execution of this Agreement. Such shares shall be registered by the Company upon
their exercise.
4.DISPUTE RESOLUTIONS.
Any dispute, controversy or claim between the Company, on the one
hand, and Xxxxxxx on the other hand, which arises out of , relates to or is in
connection with this Agreement or the subject matter hereof, shall be settled by
arbitration in the jurisdiction of the parties against whom the proceeding is
initiated in accordance with the following principles:
(i) the party demanding arbitration shall, in writing , set
forth the nature of the dispute, controversy or claim;
(ii) each of the Company and Xxxxxxx shall name an arbitrator
to resolve the dispute, with such arbitrators naming a third arbitrator;
(iii) the arbitrators, sitting as a panel, shall go carefully
into the merits of the asserted dispute, controversy or claim, and shall have
full and complete power, authority and jurisdiction to hear and determine any
and all disputed matters and shall call, and have the power to demand, such
evidence as they deem necessary to a proper determination thereof;
(iv) after a full and careful consideration of the dispute,
controversy or claim and all matters related thereto, the arbitrators shall made
a report of its finding, and such report shall be final and conclusive and shall
be binding upon the parties;
(v) a decision by any two arbitrators shall be deemed a decision
by all of the arbitrators; and
(vi) the arbitrators shall execute an award upon its decision,
and such award may be entered as a final, nonappealable judgement in any court
having jurisdiction.
6.ENTIRE AGREEMENT.
This Agreement contains the entire agreement among the parties with
respect to the subject matter hereof and supercedes all prior agreements,
written or oral, with respect thereto.
7.WAIVERS AND AMENDMENTS.
This Agreement may be amended, modified , superceded, cancelled,
renewed or extended , and the terms and conditions hereof may be waived, only by
a written instrument signed by the parties or, in the case of a waiver, by the
party waiving compliance. The rights and remedies herein provided are cumulative
and are not exclusive of any rights or remedies which any party may otherwise
have at law or in equity.
8.GOVERNING LAW.
This Agreement shall be governed and construed in accordance
with the laws of the State of Florida.
0.XX ASSIGNMENT.
This Agreement is not assignable by the parties without the prior
consent of the others.
10.SEVERABILITY.
The invalidity or unenforceability of any term, phrase, clause,
paragraph, restriction, covenant, agreement or other provision of this Agreement
shall in no way affect the validity or enforcement of any other provision or
part thereof.
00.XX AGENCY.
Xxxxxxx shall not, without the express written consent of the
Company, hold himself out as the agent of the Company, nor shall Xxxxxxx have
the authority to bind the Company or incur liabilities on behalf of the Company,
except as otherwise provided for herein, without the express written consent of
the Company.
12.NOTICES.
All notices to be given hereunder shall be in writing, with fax
notices being an acceptable substitute for mail and/or and delivery to:
(i) Xxxxxxx &Associates, Inc.
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Att. Xxxxx Xxxxxxx, President
(ii) Aquagenix Inc.
0000 XX 00xx Xxxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Att. Xxxxxx Xxxxxxx, President
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written.
AQUAGENIX, INC.
BY: /s/ Xxxxxx Xxxxxxx
--------------------------
Xxxxxx Xxxxxxx,President
XXXXXXX & ASSOCIATES,INC.
BY: /s/ Xxxxx Xxxxxxx
--------------------------
Xxxxx Xxxxxxx, President
