CONSULTING AGREEMENT
This Consulting Agreement is made effective this 6th day of June, 1998, by
and between Xxxxxxx Xxxx ("Consultant"), an individual with offices at 0000
Xxxxxxxxx Xxxxx, Xxxxxxxx, XX 00000, and JUNIPER MEDICAL SYSTEMS, INC.
("Client"), a New York corporation, with offices a:111 Xxxxx Xxxx Xxxx, Xxxxx
000, Xxxxx Xxxx 00000.
PREMISES
A. Client is engaged in the business of securing the services of healthcare
professionals, hospitals and medical provider networks in various
healthcare disciplines.
B. Consultant is engaged in the business of securing ancillary healthcare
services for physician practices.
C. Client desires to retain Consultant to perform these services and to
compensate Consultant for these services by issuing Consultant options to
purchase shares of the parent company, Juniper Group, Inc.'s ("Juniper")
common stock.
AGREEMENT
NOW THEREFORE, in consideration of the mutual promises, covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and adequacy of which is expressly acknowledged, Client and Consultant
agree as follows:
1. Engagement of Consultant
Client hereby retains Consultant to perform the following services:
A. The acquisition of physician practice management
organizations and the development and implementation of
ancillary healthcare services to such physician practices.
2. Compensation.
A. As compensation for the Consulting Services, Client shall pay
Consultant:
( i) Client shall pay Consultant total compensation of $75,000 for
the term of this Agreement, which shall be paid in Juniper's
Common Stock.
(ii) Client shall pay Consultant monthly, after the Consultant has
rendered the Consulting Services for that month, an irrevocable
option to purchase up to twelve thousand five hundred ($12,500)
dollars in value of Juniper's Common Stock, par value $0.001 per
share. The number of shares issued in each monthly option shall
be determined by dividing $12,500 by the average 30 day trading
price immediately preceding the issuance of the option. The term
of this option to purchase shares of Juniper's Common Stock shall
be in full force for a period of five (5) years from the date of
this Agreement. If termination occurs for any reason,
Consultant's option remains in effect through last date of
service.
B. Consultant shall exercise options by delivering the option price,
along with the executed Investment Letter annexed hereto as
Exhibit A to Client. Consultant will release such funds to Client
upon execution of the Investment Letter and Juniper shall make
delivery of Certificates representing the number of shares of
common stock exercised.
C. The granting of the share purchase rights are being made pursuant
to a resolution adopted by the Board of Directors of Juniper on
even date herewith, which specified that Consultant is to receive
the rights to purchase shares in the manner set forth herein.
D. Juniper shall make immediate delivery of such shares, upon full
payment and receipt of a duly executed investment representation
letter, provided that if any law or regulation requires Juniper
to take any action with respect to the shares specified in such
notice before the issuance hereof. The date of such delivery of
such shares shall be extended for the period necessary to take
such action.
E. The parties hereto acknowledge that the issuance of Juniper's
shares upon the exercise of the share purchase rights hereunder
is being made without registration under the Securities Act of
1933, as amended, (the "Securities Act"), or any other state or
federal law, that the shares issued upon exercise of the
Investment Letter will therefore be "restricted Securities"
within the meaning of the Securities Act and Rule 144 promulgated
under the Securities Act. All certificates representing the
shares issued pursuant to this Agreement, any and all
certificates issued in replacement thereof or in exchange
therefore, shall bear a legend, in substantially the following
form, which Consultant has read and understands:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED ("THE SECURITIES ACT") AND ARE
"RESTRICTED SECURITIES" AS THAT TERM IS DEFINED IN RULE 144 PROMULGATED
UNDER THE SECURITIES ACT. THE SHARES MAY NOT BE OFFERED FOR SALE, SOLD OR
OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT, THE AVAILABILITY OF WHICH IS ESTABLISHED TO THE
SATISFACTION OF JUNIPER.
F. Proxy - Consultant agrees that, upon the issuance of Juniper's
Shares to the Consultant hereunder upon the exercise of any of
the share purchase rights, Consultant shall enter into a
Shareholder's Agreement with Xxxxx X. Xxxxxxxxxxx (Hreljanovic),
a Shareholder of Juniper Group, Inc., substantially in the form
of Exhibit "B" hereto, whereby Consultant shall grant to
Hreljanovic and irrevocable proxy to vote Consultant's Shares for
a period of ( ) years earned by this Agreement, or for so long as
Consultant, or any affiliate of Consultant, or any member of
Consultant's family owns the Shares. The parties hereby
acknowledge that this proxy is coupled with an interest. Nothing
contained in this paragraph shall preclude Consultant, in his
sole discretion, from the lawful disposition of Shares acquired
by him in accordance with this Agreement.
The Certificate representing the shares will contain the following legend
reflecting the foregoing:
THE VOTE OF THE SHARES REPRESENTED BY THIS CERTIFICATE ARE GOVERNED BY A
SHAREHOLDER'S AGREEMENT DATED ___________________ BETWEEN XXXXX X.
XXXXXXXXXXX ("VPH") AND XXXXXXX XXXX ("JM"), INCLUDING AN IRREVOCABLE PROXY
TO VOTE THE SHARES GRANTED BY JM TO VPH.
3. Person Entitled to Exercise.
The Option can only be exercised by Consultant, Consultants beneficiary or
Consultant's estate, and neither this nor any rights hereunder can be
transferred other than by testamentary disposition or the laws of descent and
distribution. Neither this Option, nor any right hereunder, shall be subject to
lien, attachment, execution, or similar process. In the event of any alienation,
pledge, or hypothecation, of any other transfer of this Option, or any right
hereunder, or in the event of any levy, attachment, execution or similar
process, this Option and all rights granted hereunder shall immediately null and
void.
4. Term of Agreement, Extensions and Renewals.
This Agreement shall have an initial term of six (6) months (the "Term of
Agreement") from the date hereon, and shall terminate on December 31, 1998.
5. Termination of Agreement by the Client.
Despite anything to the contrary contained in this Agreement hereunder,
Client may terminate this Agreement and Client's consulting agreement if any of
the following events occur. In the event of such termination, Consultant may
exercise any options which have issued for services already rendered, but
Consultant is not entitled to any portion of the options which would have been
issued for services which had not been performed prior to this termination.
A. Failure to Follow Instructions. Client can terminate this Agreement in
the event Consultant fails to follow Client's instructions. Client
must advise Consultant that his actions or inactions are unacceptable
and give Consultant a reasonable time to comply. If Consultant fails
to comply, or a later time makes the same unacceptable action or
inaction, he may be terminated hereunder by Client's service of
"Notice of Termination" to Consultant.
B. Breach of Consultant's Duties. Client can terminate this Agreement if
in the sole judgment of the Chief Executive Officer, Consultant's
actions or conduct would make it unreasonable to require Client to
retain Consultant. Such acts include, but are not limited to,
dishonesty, illegal activities, activities harmful to the reputation
of the Client, and or activities that create civil or criminal
liability for the Client.
C. Sale of Client's Assets. The sale of substantially all of Client's
assets to a single purchaser or group of associated partners.
D. Termination of Client's Business. Client's bona fide decision to
terminate its business and liquidate its assets.
E. Merger on Consolidation. The merger or consolidation of Client.
6. Restrictive Covenants: Non-Circumvention:
6.1 Covenant of Nondisclosure of Confidential Information.
(a) Both Client and Consultant acknowledge that the confidential
proprietary information, including but not limited to customer lists,
financial information, contacts, customer policies, intellectual
property and production processes used in each party's business is
secret, confidential, unique, and valuable and that it was developed
by that party over a long period of time, at great cost, and that
disclosure of any item of confidential proprietary information to
anyone other than either party's officers, agents or authorized
employees will cause irreparable injury. Consultant will not disclose
to any person or entity not authorized in writing by Client, directly
or indirectly, any of Client's confidential proprietary information
and Client will not disclose to any person or entity not authorized in
writing by Consultant, directly or indirectly, any of Consultan's
confidential proprietary information. This covenant will survive the
termination of this Agreement.
(b) Notwithstanding the foregoing, either party may disclose confidential
information of the other party if required to do so by (i) subpoena,
which has not been quashed as provided in Paragraph 6.2(c); (ii) order
of any court or governmental authority (from which no further appeal
may be taken as provided in Paragraph 6.2; or (iii) if in the
reasonable opinion of the disclosing party's counsel, failure or
refusal to disclose the confidential information would result in
criminal or civil penalties.
(c) The disclosing party shall, prior to disclosing any confidential
information as set forth in Paragraph 6.2 (b), afford the other party
the reasonable opportunity to (i) quash the subpoena or (ii) appeal
the order, requiring the disclosure of the confidential information,
as the case may be.
6.2 In the event of a breach of any of the provisions of this Paragraph 6
by either party, in addition to all other remedies as allowed by law,
the other party shall be entitled to an accounting and payment of all
profits realized as a result of any such violation, consequential
damages and in addition, as a matter of right, to injunctive relief in
any court of competent jurisdiction, all of which remedies the injured
party shall be entitled to pursue simultaneously and cumulatively.
7. Best Efforts Basis.
Consultant agrees that he will at all times faithfully and to the best of
his experience, ability and talents, perform all the duties that may be required
of and from Consultant, pursuant to the terms of this Agreement. Consultant does
not guarantee that his efforts will have any impact on Client's business or that
any subsequent financial improvement will result from Consultant's efforts.
Client understands and acknowledges that the success or failure of Consultant's
efforts will be predicated on Client's assets and operating results.
8. Client's Rights to Approve Transactions.
Client expressly retains the right to approve, in its sole discretion, each
and every transaction introduced by Consultant that involves Client. Consultant
and Client agree that consultant is not authorized to enter into agreements on
behalf of Client.
9. Client Under No Duty or Obligation to Accept or Close on any
Transactions.
It is mutually understood and agreed that Client is not obligated to accept
or close any promotional proposal, acquisition, or merger transactions submitted
by Consultant.
10. Costs and Expenses.
Consultant shall be responsible for all out-of-pocket expenses, travel
expenses, third party expenses, filing fees, copy and mailing expenses that
Consultant may incur in performing Consulting Services under this Agreement.
However, such costs shall be reimbursed to Consultant if approved in writing by
Client within thirty (30) days from the date that the Consultant submits
approved expense report to Client.
11. Work Stoppage or Early Termination.
Notwithstanding anything to the contrary contained herein, Client shall
have the right to direct the work to be performed by Consultant hereunder on any
matter. In addition, Client shall have the right, at any time, to direct
Consultant to cease work or abandon its efforts on Client's behalf, and to
refrain from commencing any new work or providing any further Consulting
Services hereunder. If at any time Client directs Consultant to stop work,
Consultant shall retain all rights to exercise any remaining Option Shares which
have then been issued.
12. Non-exclusive Services.
Client acknowledges that Consultant is currently providing services of
dissimilar nature to other parties and Client agrees that Consultant is
prevented or barred from rendering services of the same nature or a similar
nature to any other individual or entity. Consultant will advise Client of its
position with respect to any activity, employment, business arrangement, or
potential conflict of interest, which may be relevant to this Agreement. Client
shall solely determine that Consultant is devoting a reasonable amount of time
to Client to meet Client's consulting services.
13. All Prior Agreements Terminated.
This Agreement constitutes the entire understanding of the parties with
respect to the engagement of Consultant, and all prior agreement with respect
thereto are hereby terminated and shall be of no force or effect.
14. Representations and Warranties of Client.
Client hereby represents and warrants to Consultant that:
A. Corporate Existence. Client is a corporation duly organized and
validly existing, under the laws of the State of New York, with
corporate power to own property and carry on its business as it is now
being conducted
B. Financial Statements. Juniper has or will cause to be delivered,
concurrent with the execution of this Agreement, copies of the most
recent Form 10-KSB, and all subsequent 10-QSBS, which accurately set
forth the financial condition of Client as of the respective dates of
such documents.
C. No Conflict. This Agreement has been duly executed by Client and the
execution and performance of this Agreement will not violate, or
result in a breach of, or constitute a default in any agreement,
instrument, judgment, decree, or order to which Client is a party or
to which Client is subject, nor will such execution and performance
constitute a violation or conflict of any fiduciary duty to which
Client is subject.
15. Representations and Warranties of Consultant.
A. Information. No representation or warranty contained herein, nor a
statement in any document, certificate or schedule furnished or to be
furnished, pursuant to this Agreement by Consultant, or in connection
with the transaction contemplated hereby, contains or contained any
untrue statement of material fact.
B. Inside Information Securities Laws Violations. In the course of the
performance of his duties, consultant may become aware of information
which may considered "inside information" within the meaning of the
Federal Securities Laws, Rules and Regulations. Consultant
acknowledges that his use of such information to purchase or sell
securities of client, or its affiliates, or to transmit such
information to any other party with a view to buy, sell, or otherwise
deal in Client's securities, is prohibited by law and would constitute
a breach of this Agreement and notwithstanding the provisions of this
Agreement, will result in the immediate termination of the Options.
C. No Restrictions. There is no pending or threatened suit, action, or
legal, administrative arbitration or other proceeding of claim by any
governmental agency, whether federal, state, local or foreign, against
the Consultant or any individual or entity which the Consultant
controls, is controlled by, or is under common control with, which
adversely, or might adversely, effect the (i) Consultant's ability to
provide the services set forth herein; or (ii) the Company.
The Consultant's performance of the services hereunder is not in
violation of any law, statute or regulation of any governmental
authority, whether federal, state, local or foreign, or any of the
terms, conditions, or provisions of any judgement, order, injunction,
decree or ruling of any court or governmental authority, whether
federal, state, local or foreign.
The Consultant has all requisite licenses, authorizations and
consents, if any, necessary to perform the services hereunder.
D. Reliance Upon Representations. The information provided pursuant to
this Agreement may be relied upon by Client, as true and correct as of
the date of delivery of any shares received by Consultant through
executions of options hereunder.
(a) By reason of Consultant's knowledge and experience of financial
and business matters in general, and investments in particular,
Consultant is capable of evaluating the merits of this
transaction and in bearing the economic risks of an investment in
the shares and the Company in general and fully understand the
speculative nature of such securities and the possibility of such
loss;
(b) Consultant has had the opportunity to ask questions and receive
answers concerning the terms and conditions of the Shares to be
issued hereby and reserved for issuance pursuant hereto, and to
obtain any additional information which Client possesses or can
acquire without unreasonable effort or expense that is necessary
to verify the accuracy of information furnished; and
(c) Consultant has been furnished with a copy of Juniper's most
recent Annual Report on Form 10-KSB and all reports or documents
required to be filed under Sections 13(a), 14(a) and 15(d)of the
Securities and Exchange Act of 1933, as amended, including but
not limited to, quarterly reports on Form 10-QSB; and, in
addition, that Consultant has been furnished with a brief
description of Juniper's capital structure and any material
changes in Juniper's affairs that may not have been disclosed in
the Disclosure Documents.
16. Consultant is Not an Agent or Employee.
Consultant's obligations under this Agreement consist solely of the
Consulting Services described herein. In no event shall Consultant be considered
as the employee or agent of Client or otherwise represent or bind Client. For
purposes of this Agreement, Consultant is an independent contractor. All final
decisions with respect to acts of Client or its affiliates, whether or not made
pursuant to, or in reliance on, information or advice furnished by Consultant
hereunder, shall be those of Client or such affiliates, and consultant shall
under no circumstances be liable for any expense incurred or loss suffered by
Client as a consequence of such action or decisions.
17. Miscellaneous.
A. Authority. The execution and performance of this Agreement has
been duly authorized by all requisite corporate action. This
Agreement constitutes a valid and binding obligation of the
parties hereto.
B. Amendment. This Agreement may be amended or modified at any time
and in any manner, but only by an instrument in writing executed
by the parties hereto.
C. Waiver. All the rights and remedies of either party under this
Agreement are cumulative and are not exclusive of any other
rights and remedies provided by law. No delay or failure on the
part of either party in the exercise of any right or remedy
arising from a breach of this Agreement shall operate as a waiver
of any subsequent right or remedy arising from a subsequent
breach of this Agreement. The consent of any party where required
hereunder to any act or occurrence shall not be deemed to be a
consent to any other act of occurrence.
D. Assignment:
( i) Neither party to this Agreement shall assign any right
created by it without the prior written consent of the
other;
(ii) Nothing in this Agreement, expressed or implied, is intended
to confer upon any person, other than the parties and their
successors, any rights or remedies under this Agreement.
E. Notices. Any notice or other communication required or permitted
by this Agreement must be in writing and shall be deemed to be
properly given when delivered in person to an officer of the
other party, when deposited in the United States mails for
transmittal by certified or registered mail postage prepaid, or
when deposited with a public telegraph company for transmittal or
when sent by facsimile transmission, charges prepared, provided
that the communication is addressed:
( i) In the case of the Consultant to:
Xxxxxxx Xxxx
0000 Xxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
(ii) In the case of Client to:
Juniper Medical Systems, Inc.
000 Xxxxx Xxxx Xxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or to such other person or address designated by the parties to receive
notice.
F. Headings and Captions. The headings of paragraphs are included
solely for convenience. If a conflict exists between any heading
and the text of this Agreement, the text shall control.
G. Entire Agreement. This instrument and the exhibits to this
instrument contain the entire Agreement between the parties with
respect to the transaction contemplated by the Agreement. It may
be executed in any number of counterparts, but the aggregate of
the counterparts together constitute only one and the same
instrument.
H. Effect of Partial Invalidity. In the event that any one or more
of the provisions contained in this Agreement shall for any
reason be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall
not affect any other provisions of this Agreement, but this
Agreement shall be constructed as if its never contained any such
invalid, illegal or unenforceable provisions.
I. Controlling Law. The validity, interpretation, and performance of
this Agreement shall be controlled by and construed under the
laws of the State of New York, County of Nassau, the state in
which this Agreement is being executed.
J. Attorney's Fees. If any action at law or in equity, including an
action for declaratory relief, is brought to enforce or interpret
the provisions of this Agreement, the prevailing party shall be
entitled to recover actual attorney's fees from the other party.
The attorney's fees may be ordered by the court in the trial of
any action described in this paragraph or may be enforced in a
separate action brought for determining attorney's fees.
K. Mutual Cooperation. The parties hereto shall cooperate with each
other to achieve this purpose of this Agreement and shall execute
such other and further documents and take such other and further
actions as may be necessary or convenient to effect the
transactions described herein.
L. Further Actions. At any time and from time to time, each party
agrees, at its or their expense, to take actions and to execute
and deliver documents as may be reasonably necessary to
effectuate the purposes of this Agreement.
M. Indemnification. Client and Consultant agree to indemnify, defend
and hold each other harmless from and against all demands,
claims, actions, losses, damages, liabilities, costs and
expenses, including without limitation, interest, penalties and
attorney's fees and expenses asserted against or imposed or
incurred by either party by reason of, or resulting from, a
breach of any representation, warranty, covenant, condition or
agreement of the other party to this Agreement.
N. No Third Part Beneficiary. Nothing in this Agreement, expressed
or implied, is intended to confer upon any person, other than the
parties hereto, and their successors, any rights or remedies
under or by reason of this Agreement, unless this Agreement
specifically states such intent.
O. Facsimile Counterparts. If a party signs this Agreement and
transmits an electronic facsimile of the signature page to the
other party, the party who receives the transmission may rely
upon the electronic facsimile as a signed original of this
Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
herein above written.
CONSULTANT:
/s/ Xxxxxxx Xxxx
----------------
Xxxxxxx Xxxx
CLIENT:
JUNIPER MEDICAL SYSTEMS, INC.
By:/s/ Xxxxx X. Xxxxxxxxxxx
-------------------------
Xxxxx X. Xxxxxxxxxxx, Chairman of the Board, CEO & President
