KBL HEALTHCARE MANAGEMENT, INC. New York, N.Y. 10168
KBL
HEALTHCARE MANAGEMENT, INC.
000
Xxxxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, X.X. 00000
April 30,
2009
PRWT
Services, Inc.
0000
Xxxxxx Xxxxxx
Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000
Attention: Chief
Executive Officer
Gentlemen:
This
letter agreement (the “General Advisory Agreement” or this “Agreement”) will
confirm the arrangements, terms and conditions pursuant to which KBL Healthcare
Management, Inc. (“Advisor” or “KBL”) has been retained to serve as a strategic
and financial advisor to PRWT Services, Inc. (the “Company”) during the Term (as
defined in Section 2 hereof). For good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the undersigned hereby agree to
the following terms and conditions:
1. Duties of
Advisor. The Company retains KBL as a non-exclusive financial
advisor to provide to the Company when requested by the Company from time to
time, during normal business hours, upon reasonable notice, strategic and
financial advice concerning stockholder relations, including advice regarding
the preparation of reports and other releases, long-term financial and strategic
planning, corporate reorganization and expansion, capital structure, borrowings
and other financial assistance. These services shall be rendered by
KBL in consultation and in cooperation with PRWT’s Vice Chairman (“Vice
Chairman”) or such other officer as designated by PRWT, and at such time and
place and in such manner (whether by conference, telephone, letter or otherwise)
as KBL and the Vice Chairman (or such other officer as designated by PRWT ) may
mutually reasonably determine. KBL shall make available such time as
is required to satisfactorily perform its obligations under this
Agreement.
2. Term. Unless
otherwise terminated in accordance with this Section 3, the term of KBL’s
engagement hereunder shall be for a period of three years commencing on the date
(“Effective Date”) that the proposed business combination between KBL Healthcare
Acquisition Corp. III (“KHAC”) and the Company under the terms of the agreement
and plan of reorganization by and among KHAC, the Company and certain other
parties, dated as of March 13, 2009 (the “Initial Term”) has been successfully
consummated. Unless either party notifies the other in writing
delivered no later than 90 days prior to the first or second anniversary of the
Effective Date of a decision to terminate this Agreement at the end
of such year, this Agreement shall continue for the remainder of the
Initial Term. Thereafter, this Agreement may be extended by the mutual consent
of PRWT and KHAC for additional successive one year terms. The terms provided
hereby shall remain in full force and effect during any additional years (the
“Additional Term” and, together with the Initial Term, the “Term”).
3. Compensation and Expense
Reimbursement.
(a) As
compensation for the services rendered by KBL hereunder, the Company shall pay
KBL a fee of Two Hundred and Fifty Thousand Dollars ($250,000) per year, with
the first annual payment being made on the Effective Date and subsequent annual
payments being made on the first anniversary and second anniversary of the
Effective Date.
(b) KBL shall
be promptly reimbursed for all reasonable, documented out-of-pocket expenses
incurred in connection with its engagement hereunder.
(c) The fees
set forth herein shall be solely for the services set forth in paragraph 1 above
and shall be in addition to any other fees to which the parties may agree from
time to time with respect to specific transactions or other services, the terms
of which shall be set forth in a separate written agreement between the
parties.
5. Relationship. Nothing
herein shall constitute Advisor as an employee or agent of the Company, except
to such extent as might hereinafter be agreed upon in writing for a particular
purpose. Except as might hereinafter be expressly agreed, Advisor
shall not have the authority to obligate or commit the Company in any manner
whatsoever.
6. Assignment. This
Agreement shall not be assignable by any party except to successors to all or
substantially all of the business of either party for any reason whatsoever
without the prior written consent of the other party, which consent may not be
unreasonably withheld by the party whose consent is required.
7. Survival. The
provisions set forth in Paragraphs 3, 4, 6 and 10, if applicable, shall survive
any termination of Advisor or of this Agreement.
8. Amendment. This
Agreement may not be amended or modified except in writing signed by each of the
parties.
9. Governing
Law. This Agreement shall be deemed to have been made and
delivered in New York City, and both this Agreement and the services
contemplated hereby shall be governed as to validity, interpretation,
construction, effect, and in all other respects by the internal laws of the
State of New York. Each of Advisor and the Company (a) agrees that
any legal suit, action, or proceeding arising out of or relating to this
Agreement and/or the transactions contemplated hereby shall be instituted
exclusively in New York State Supreme Court, County of New York, or in the
United States District Court for the Southern District of New York, (b) waives
any objection which it may have now or hereafter to the venue of any such suit,
action, or proceeding, and (c) irrevocably consents to the jurisdiction of the
New York State Supreme Court, County of New York, and the United States District
Court for the Southern District of New York in any such suit, action or
proceeding. Each of Advisor and the Company further agrees to accept
and acknowledge service of any and all process which may be served in any such
suit, action, or proceeding in the New York State Supreme Court, County of New
York, or in the United States District Court for the Southern District of New
York, and agrees that service of process upon the Company mailed by certified
mail to the Company's address shall be deemed in every respect effective service
of process upon the Company in any such suit, action or proceeding, and service
of process upon Advisor mailed by certified mail to Advisor's address shall be
deemed in every respect effective service of process upon Advisor in any such
suit, action, or proceeding.
2
Please
confirm that the foregoing correctly sets forth our agreement by signing the
enclosed duplicate of this letter in the space provided and returning it to KBL,
whereupon this letter shall constitute a binding agreement as of the date first
above written.
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Very
truly yours,
KBL
HEALTHCARE MANAGEMENT, INC.
By:
/s/ Xxxxxxx Xxxxxx,
M.D.
Name: Xxxxxxx
Xxxxxx, M.D.
Title: Chief
Executive Officer
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AGREED
AND ACCEPTED AS OF THE
DATE
FIRST ABOVE WRITTEN:
PRWT
SERVICES, INC.
By: /s/ Xxxxx
Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Vice Chairman
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Exhibit
A
Unless
otherwise noted, all capitalized terms used herein shall have the meanings set
forth in the Agreement.
Since KBL
will be acting on behalf of the Company in connection with the engagement
contemplated by this Agreement, and as part of the consideration for KBL to
furnish its services pursuant to this Agreement, the Company hereby agrees to
indemnify and hold harmless KBL and its affiliates and the respective
directors, officers, partners, controlling persons (within the meaning of
Section 15 of the Securities Act of 1933 or Section 20 of the Securities
Exchange Act of 1934), agents, counsel and employees of KBL or any of its
affiliates (KBL and each such other person or entity being referred to
individually as an “Indemnified Person” and, collectively, as “Indemnified
Persons”) from and against any and all claims, liabilities, losses, damages,
penalties, judgments, awards and expenses incurred by any Indemnified Person
(including fees and disbursements of counsel) which (A) are related to or arise
out of (i) actions taken or omitted to be taken (including any untrue statements
made or alleged to have been made or any statements omitted or alleged to have
been omitted) by the Company, its affiliates, directors, employees or agents as
part of this Agreement or (ii) actions taken or omitted to be taken by an
Indemnified Person with the Company’s consent or in conformity with its
instructions or its actions or omissions as part of this Agreement or (B) are
otherwise related to or arise out of KBL’s activities on the Company’s behalf in
connection with the engagement under this Agreement and will reimburse KBL and
any other Indemnified Person for all costs and expenses, including counsel fees
and disbursements, as they are incurred, in connection with investigating,
preparing and defending any action, formal or informal claim, investigation,
inquiry or other proceeding, whether or not in connection with pending or
threatened litigation, caused by or arising out of or in connection with KBL
acting pursuant to this Agreement, whether or not KBL or any Indemnified Person
is named as a party thereto and whether or not any liability results therefrom.
The Company will not, however, be responsible for any claim, liabilities,
losses, damages or expenses pursuant to clause (B) of the preceding sentence
which are finally judicially determined by a court of competent jurisdiction
(not subject to further review) to have resulted primarily from KBL’s willful
misconduct or gross negligence. The Company also agrees that neither KBL nor any
other Indemnified Person shall have any liability to the Company for or in
connection with this Agreement, except for any such liability for
claims, liabilities, losses, damages, or expenses incurred by the Company which
is finally judicially determined to have resulted primarily from KBL’s willful
misconduct or gross negligence.
4
The
foregoing right to indemnity and contribution shall be in addition to any rights
that KBL or any other Indemnified Person may have at common law or otherwise and
shall remain in full force and effect following the completion or any
termination of KBL’s engagement. The Company hereby consents to personal
jurisdiction and to service and venue in any court in which any claim which is
subject to this agreement is brought against KBL or any other Indemnified
Person. Neither termination nor completion of the engagement of KBL referred to
above shall affect these provisions which shall remain operative and in full
force and effect.
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