AMENDED AND RESTATED
CONSULTING AGREEMENT
BY AND AMONG
MEDCROSS, INC.
KALO ACQUISITIONS, L.L.C.
AND
XXXXX X. XXXXXX
THIS AGREEMENT (the "Agreement") is effective as of the 18th
day of October, 1995, by and among Medcross, Inc., a Florida
corporation with principal offices at 0000 Xxxxxx Xxxxxx Xxxxx,
Xx. Xxxxxxxxxx, Xxxxxxx 00000 (the "Corporation"), Xxxxx X. Xxxxxx
(hereinafter referred to as "Xxxxxx" or the "Consultant" as the
context may require) and Kalo Acquisitions, L.L.C., a Delaware limited
liability Corporation with principal offices at 000 XXX Xxxxx, Xxxx
Xxxxx, Xxxxx 000, Xxxxxxxxx, Xxx Xxxx 00000-0000 ("Kalo").
WHEREAS, Kalo, through its manager and employees has developed
expertise in and is in the business of providing consulting services,
including finding and assessing acquisition candidates and providing
investor and public relations services;
WHEREAS, Xxxxxx is the manager and an employee of Kalo, and
has expertise in the area of providing consulting services, including
finding and assessing acquisition candidates and providing investor
and public relations services;
WHEREAS, the Corporation desires to engage Xxxxxx to provide
services to the Corporation as set forth below, upon the terms and
subject to the conditions set forth herein;
WHEREAS, Xxxxxx desires to provide services to the Corporation
as set forth below, upon the terms and subject to the conditions set
forth herein;
WHEREAS, Kalo, Xxxxxx and the Corporation have agreed that
Xxxxxx shall render the services set forth below to the Corporation
upon the terms and subject to the conditions set forth herein; and
WHEREAS, Kalo has agreed to provide Xxxxxx the opportunity to
avail himself of Kalo's resources including, without limitation, use
of any phone lines, computers, photocopiers, facsimile machines,
postage meters and other supplies in exchange for Xxxxxx'x
reimbursement to Kalo of the costs of the same.
NOW, THEREFORE, in consideration of the foregoing and for such
other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. Engagement. The Corporation hereby engages the Consultant to
render to it for a period of three (3) years commencing
February 1, 1996 (the "Term") the investor and public
relations services described herein. The Term hereof may be
renewed upon the written agreement of the Corporation, Kalo
and the Consultant entered into prior to expiration of the
initial Term hereof on such terms as the parties hereto may
negotiate at the time of such renewal.
2. Services. For the Term of this Agreement, the Consultant
shall perform the following services for the Corporation:
(a) Assist the Corporation in locating, assessing and
implementing the acquisition by the Corporation, by way of
private or open market purchases of stock, purchase of
assets, merger, tender offer, joint venture or otherwise,
the acquisition by the Corporation of one or more
businesses, divisions or other operating entities and/or
assets, including without limitation thereto Image Trust,
consistent with the directives of the Corporation;
(b) Prepare and distribute, with the Corporation's prior
approval, due-diligence packages for the brokerage
community which would include presentation folders, press
release sheets and a Corporation overview pamphlet;
(c) Prepare and distribute, with the Corporation's prior
approval, investor relations packages;
(d) Coordinate broker presentations to be held a minimum of
four (4) times per year;
(e) Prepare and disseminate, with the Corporation's prior
approval, information about the Corporation to investors;
(f) Present and introduce the Corporation to broker/dealers,
fund managers and analysts on a continual basis;
(g) Prepare and disseminate, with the Corporation's prior
approval, press releases in compliance with any applicable
regulatory guidelines to wire/news services;
(h) Disseminate for informational purposes the Corporation's
publicly filed materials, including the Corporation's
Annual and Quarterly Reports on Form 10-KSB and Form
10-QSB, respectively, to investors;
(i) Assist with the set up of annual and special shareholder
meetings;
from time to time by the officers of the Corporation;
(k) Reimburse Kalo for its costs related to the use of any of
its resources as contemplated herein;
(l) Locate and introduce at least ten (10) broker/dealers
and/or market makers to the Corporation to make a market
in the Corporation's securities; and
(m) Bear all costs and expenses relating to any of the
foregoing.
3. Compensation. In consideration for the performance of the
services described above, the Corporation shall issue to the
Consultant an option exercisable to purchase an aggregate of
up to one hundred fifty thousand (150,000) shares of its
common stock, par value $.007 per share (the "Common Stock"),
which option (the "Option") shall be exercisable as set forth
below and shall expire on January 31, 1999:
(a) commencing on February 1, 1996, the Option shall become
exercisable to purchase up to fifty thousand (50,000)
shares of Common Stock at an exercise price of one dollar
and fifty cents ($1.50) per share;
(b) commencing on February 1, 1997, the Option shall become
exercisable to purchase an additional fifty thousand
(50,000) shares of Common Stock at an exercise price of
two dollars and fifty cents ($2.50) per share; and
(c) commencing on February 1, 1998, the Option shall become
exercisable to purchase an additional fifty thousand
(50,000) shares of Common Stock at an exercise price of
three dollars and fifty cents ($3.50) per share.
4. Registration Rights. The Corporation shall file,
contemporaneously with or as soon as practicable after
execution hereof, a registration statement relating to the
shares of Common Stock issuable pursuant hereto on Form S-8
with the Securities and Exchange Commission (the "Commission")
pursuant to the Securities Act of 1933 (the "Act"). In the
event that, for any reason whatsoever, such Form S-8 is not
available for use by the Corporation, the Corporation shall
file such form of registration statement as is available for
use by the Corporation as specified or otherwise permitted by
the Act and the rules and regulations promulgated thereunder.
The Corporation shall bear the expenses of such registration
and shall: (a) provide any requisite prospectuses meeting the
requirements of the Act and such other documents as the
Consultant may reasonably request for a period of at least
twelve (12) months following expiration of the Option in order
to facilitate the sale or other disposition of such
securities; (b) register and qualify for sale any of such
securities in such states as the Consultant may reasonably
designate; and (c) do any and all other acts and things which
may be necessary or desirable to enable the Consultant to
consummate the sale or other disposition of such securities.
The Consultant hereby acknowledges that it understands that:
(a) neither the Option nor the shares of Common Stock issuable
upon exercise thereof have previously been the subject of
registration under the Act or any applicable state
securities laws;
(b) the Consultant may not sell or otherwise transfer the
Option or the shares of Common Stock issuable upon
exercise of the Option unless such securities are subject
to an effective registration statement under the Act and
any applicable state securities laws (unless exemptions
from such registration requirements are available);
(c) in the event that any shares of Common Stock issuable
pursuant to exercise of the Option are issued at a time
during which a registration statement relating to the same
is not effective, until such shares of Common Stock are
subject to an effective registration statement under the
Act, a legend will be placed on any certificate or
certificates evidencing the same indicating that the
transfer of such securities has not been registered under
the Act and setting forth or referring to the restrictions
on transferability and sales of such securities; and
(d) the Corporation will place stop transfer instructions
against the certificate or certificates evidencing the
securities issuable pursuant hereto to restrict the
transfer thereof.
5. Representations and Warranties. The Consultant hereby
represents and warrants that:
(a) the Consultant will not sell or otherwise transfer the
Option or the shares of Common Stock issuable upon
exercise of the Option without compliance with the Act and
any applicable state securities laws;
(b) the Consultant has received and carefully read the
following: (i) the Corporation's Annual Report on Form
10-KSB for the period ended December 31, 1994 (File No.
0-17973); (ii) the Corporation's Quarterly Reports on Form
10-QSB for the periods ended March 31, 1995, June 30, 1995
and September 30, 1995 (File No. 0-17973); and (iii)
written or verbal responses for all questions the
Consultant has submitted to the Corporation regarding its
acquisition of the securities described herein, all of
which the Consultant acknowledges have been provided to
the Consultant (the "Corporate Materials"). The
Consultant has not been furnished with any other materials
or literature relating to the acquisition of the
securities described herein, other than the Corporate
Materials. The Consultant has been given the opportunity
to ask questions of and to receive answers from the
Corporation concerning the terms and conditions of the
acquisition of the securities described herein and the
Corporate Materials, and to obtain such additional written
information necessary to verify the accuracy of same as
the Consultant desires in order to evaluate the
acquisition of and investment in the securities described
herein. The Consultant acknowledges and confirms that the
written and/or verbal responses provided to the Consultant
by the Corporation in response to the Consultant's
questions are not contrary to or inconsistent with, nor do
they in any way conflict with the information set forth in
the Corporate Materials. The Consultant further
acknowledges that it fully understands the information
contained in the Corporate Materials and the Consultant
has had the opportunity to discuss any questions regarding
the Corporate Materials with its counsel or other advisor.
Notwithstanding the foregoing, the only information upon
which the Consultant has relied is that set forth in the
Corporate Materials and that derived by its own
independent investigation. The Consultant acknowledges
that the Consultant has received no representations or
warranties from the Corporation or its employees or agents
in making an investment decision related to the
acquisition of the securities described herein, other than
as set forth herein;
(c) the Consultant is aware that the acquisition of the
securities described herein is a speculative investment
involving a high degree of risk and that there is no
guarantee that the Consultant will realize any gain from
its acquisition of or investment in such securities. The
Consultant has specifically reviewed the Corporate
Materials with a view toward acquiring the securities
described herein;
(d) the Consultant understands that no federal or state agency
or other authority: (i) has made any finding or
determination regarding the fairness of the transactions
described herein, (ii) has made any recommendation or
endorsement of the transactions described herein, or
(iii) has passed in any way upon this agreement or the
Corporate Materials;
(e) the Consultant: (i) is acquiring the securities described
herein solely for his own account for investment purposes
only and not with a view toward resale or distribution
thereof, either in whole or in part; and (ii) has no
contract, undertaking, agreement or other arrangement, in
existence or contemplated, to sell, pledge, assign or
otherwise transfer the securities to any other person;
(f) the Consultant has adequate means of providing for his
current needs and contingencies and has no need for
liquidity in the investment in the securities described
herein. The Consultant has read, is familiar with and
understands Rule 501 of Regulation D and represents that
he is an "accredited investor" as defined in Rule 501(a)
of Regulation D under the Act. The Consultant has no
reason to anticipate any material change in his financial
condition for the foreseeable future;
(g) the Consultant is financially able to bear the economic
risk of an investment in the securities described herein,
including the ability to hold such securities indefinitely
and to afford a complete loss of an investment in such
securities;
(h) the Consultant's overall commitment to investments which
are not readily marketable is not disproportionate to the
Consultant's net worth, and the Consultant's investment in
the securities described herein will not cause such
overall commitment to become excessive. The Consultant
understands that the statutory basis on which such
securities are being issued to the Consultant would not be
available if the Consultant's present intention were to
hold such securities for a fixed period of time or until
the occurrence of a certain event. The Consultant
realizes that, in the view of the Commission, the
acquisition of such securities now with a present
intention to resell by reason of a foreseeable specific
contingency or any anticipated change in the market value
of such securities, or in the condition of the Corporation
or that of the industry in which the business of the
Corporation is engaged or in connection with a
contemplated liquidation, would, in fact, constitute an
acquisition and/or purchase with an intention inconsistent
with the Consultant's representations to the Corporation
and the Commission would then regard such purchase as a
purchase for which the exemption from registration under
the Act relied upon by the Corporation in connection
herewith is not available; and
(i) the Consultant has such knowledge and experience in
financial and business matters as to be capable of
evaluating the merits and risks of the acquisition of and
an investment in the securities described herein.
6. Confidential Information. The parties hereto recognize that
it is fundamental to the business and operation of the
Corporation, its subsidiaries, affiliates and divisions
thereof to preserve the specialized knowledge, trade secrets,
and confidential information of the foregoing entities. The
strength and good will of the Corporation is derived from the
specialized knowledge, trade secrets, and confidential
information generated from experience through the activities
undertaken by the Corporation, its subsidiaries, affiliates
and divisions thereof. The disclosure of any of such
information and the knowledge thereof on the part of
competitors would be beneficial to such competitors and
detrimental to the Corporation, its subsidiaries, affiliates
and divisions thereof, as would the disclosure of information
about the marketing practices, pricing practices, costs,
profit margins, design specifications, analytical techniques,
concepts, ideas, process developments (whether or not
patentable), customer and client agreements, vendor and
supplier agreements and similar items or technologies. By
reason of performance under this Agreement, the Consultant may
have access to and may obtain specialized knowledge, trade
secrets and confidential information such as that described
herein about the business and operation of the Corporation,
its subsidiaries, affiliates and divisions thereof.
Therefore, the Consultant hereby agrees that he shall keep
secret and retain in confidence and shall not use, disclose to
others, or publish, other than in connection with the
performance of services hereunder, any information relating to
the business, operation or other affairs of the Corporation,
its subsidiaries, affiliates and divisions thereof, including
but not limited to, confidential information concerning the
marketing practices, pricing practices, costs, profit margins,
products, methods, guidelines, procedures, engineering designs
and standards, design specifications, analytical techniques,
technical information, customer, client, vendor or supplier
information, employee information, or other confidential
information acquired by each of them in the course of
providing services for the Corporation. The Consultant agrees
to hold as the Corporation's property all notes, memoranda,
books, records, papers, letters, formulas and other data and
all copies thereof and therefrom in any way relating to the
business or operation of the Corporation, its subsidiaries,
affiliates and divisions thereof, whether made by the
Corporation or the Consultant or as may otherwise come into
the possession of the Consultant. Upon termination of this
Agreement or upon the demand of the Corporation, at any time,
the Consultant shall deliver the same to the Corporation
within twenty-four (24) hours of such termination or demand.
7. Reformation. In the event that a court of competent
jurisdiction determines that the confidentiality provisions or
part of a provision hereof are unreasonably broad or otherwise
unenforceable because of the length of their respective terms
or the breadth of their territorial scope, or for any other
reason, the parties hereto agree that such court may reform
the terms and/or scope of such covenants so that the same are
reasonable and, as reformed, shall be enforceable.
8. Applicable Law. This Agreement shall be construed and
enforced in accordance with the laws of the State of Florida
without regard to the principles of conflicts of laws thereof
and shall inure to the benefit of and be binding upon Kalo,
the Consultant and the Corporation and their respective legal
successors and assigns.
9. Remedies. In the event of a breach of any of the provisions
of this Agreement, the non-breaching party shall provide
written notice of such breach to the breaching party. The
breaching party shall have thirty (30) days after receipt of
such notice in which to cure its breach. If, on the
thirty-first (31st) day after receipt of such notice, the
breaching party shall have failed to cure such breach, the
non-breaching party thereafter shall be entitled to seek
damages. It is acknowledged that this Agreement is of a
unique nature and of extraordinary value and of such a
character that a breach hereof by the Consultant or the
Corporation shall result in irreparable damage and injury for
which the non-breaching party may not have any adequate remedy
at law. Therefore, if, on the thirty-first (31st) day after
receipt of such notice, the breaching party shall have failed
to cure such breach, the non-breaching party shall also be
entitled to seek a decree of specific performance against the
breaching party, or such other relief by way of restraining
order, injunction or otherwise as may be appropriate to ensure
compliance with this Agreement. The remedies provided by this
section are non-exclusive and the pursuit of such remedies
shall not in any way limit any other remedy available to the
parties with respect to this Agreement, including, without
limitation, any remedy available at law or equity with respect
to any anticipatory or threatened breach of the provisions
hereof.
10. No Continuing Waiver. The waiver by any party of any
provision or breach of this Agreement shall not operate as or
be construed to be a waiver of any other provision hereof or
of any other breach of any provision hereof.
11. Notice. Any and all notices from either party to the other
which may be specified by, or otherwise deemed necessary or
incident to this Agreement shall, in the absence of hand
delivery with return receipt requested, be deemed duly given
when mailed if the same shall be sent to the address of the
party set out on the first page of this Agreement by
registered or certified mail, return receipt requested, or
express delivery (e.g., Federal Express).
12. Severability of Provisions. The provisions of this Agreement
shall be considered severable in the event that any of such
provisions are held by a court of competent jurisdiction to be
invalid, void or otherwise unenforceable. Such invalid, void
or otherwise unenforceable provisions shall be automatically
replaced by other provisions which are valid and enforceable
and which are as similar as possible in term and intent to
those provisions deemed to be invalid, void or otherwise
unenforceable. Notwithstanding the foregoing, the remaining
provisions hereof shall remain enforceable to the fullest
extent permitted by law.
13. Assignability. This Agreement shall not be assignable without
the prior written consent of the non-assigning party or
parties hereto and shall be binding upon and inure to the
benefit of any heirs, executors, legal representatives or
successors or permitted assigns of the parties hereto.
14. Entire Agreement; Amendment. This Agreement contains the
entire agreement among the Corporation, Kalo and the
Consultant with respect to the subject matter hereof. This
Agreement may not be amended, changed, modified or discharged,
nor may any provision hereof be waived, except by an
instrument in writing executed by or on behalf of the party
against whom enforcement of any amendment, waiver, change,
modification or discharge is sought. No course of conduct or
dealing shall be construed to modify, amend or otherwise
affect any of the provisions hereof.
15. Headings. The paragraph headings contained in this Agreement
are for reference purposes only and shall not in any way
affect the meaning or interpretation of the provisions of this
Agreement.
16. Termination. The Corporation may terminate this Agreement
with or without cause at any time upon delivery of thirty (30)
days prior written notice to the other parties hereto. Any
such termination shall result in the termination of the
Consultant's respective rights to receive any further
compensation, except with respect to accrued compensation
which Consultant shall have the right to receive
notwithstanding termination hereof.
17. Survival. Sections 5, 6, 7, 8, 11 and 12 shall survive the
termination for any reason of this Agreement (whether such
termination is by the Corporation, upon the expiration of this
Agreement by its terms or otherwise).
* * * * *
IN WITNESS WHEREOF, the parties have caused this Agreement for
Consulting Services to be executed and delivered by their duly
authorized officers as set forth below and have caused their
respective corporate seals to be hereunder affixed as of the date
first above written.
MEDCROSS, INC.
By:/s/ Xxxxx Y.L. Toh
Xxxxx Y.L. Toh, President
KALO ACQUISITIONS, L.L.C.
By:/s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx, Manager
THE CONSULTANT
/s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
