EXHIBIT 10(X)
COMMONWEALTH ASSOCIATES
000 XXXXX XXXXXX
XXX XXXX, XXX XXXX 00000
August 20, 1996
Medcross, Inc.
0000 Xxxxxx Xxxxxx Xxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxx Toh
Chairman of the Board
Dear Mr. Toh:
This letter, when executed by the parties hereto, will constitute an
agreement between Medcross, Inc. (the "Company") and Commonwealth Associates
("Commonwealth") pursuant to which the Company agrees to retain Commonwealth and
Commonwealth agrees to be retained by the Company under the terms and conditions
set forth below.
1. The Company hereby retains Commonwealth to perform consulting
services related to corporate finance and other financial services matters, and
Commonwealth hereby accepts such retention. In this regard, subject to the
terms set forth below, Commonwealth shall furnish to the Company advice and
recommendations with respect to such aspects of the business and affairs of the
Company as the Company shall, from time to time, reasonably request upon
reasonable notice. In addition, Commonwealth shall hold itself ready to assist
the Company in evaluating and negotiating particular contracts or transactions,
if requested to do so by the Company, upon reasonable notice.
2. As compensation for the services described in paragraph 1 above,
the Company shall pay to Commonwealth a fee of $200,000, for the full term of
this Agreement of 12 months, payable in full in advance on the date hereof, and
shall sell to Commonwealth (or its designated affiliates) upon the execution of
this agreement, 500,000 common stock purchase warrants at a price of $.001 per
warrant. Such warrants will expire five years after the Offering is consummated
and will be exercisable at $2.50 per share. The warrants may be exercised as to
all or a lesser number of shares and will contain provisions for registration of
the resale of the underlying shares at the Company's expense, cashless exercise
and for adjustment in the number of such shares and the exercise price to
prevent dilution. In addition to its compensation hereunder, the Company will
reimburse Commonwealth for any and all reasonable expenses incurred by
Commonwealth in the performance of its duties hereunder, and Commonwealth shall
account for such expenses to the Company; provided, however, that any expenses
in excess of $1,000 shall require the prior written approval of the Company,
which will not be unreasonably withheld. Such reimbursement shall accumulate
and be paid monthly. Nothing contained herein shall prohibit Commonwealth from
receiving any additional
compensation under paragraphs 3 and 4 herein or otherwise. In addition to the
$200,000 fee set forth above, the Company shall pay to Commonwealth, as
compensation for its services, an amount equal to 2% of all subscription amounts
above $10,000,000 received by the Company in connection with the Company's
private placement offering of Series C Preferred Stock; provided, however, in
calculating the amount of such additional 2% fee, there shall be excluded from
the total subscription amount the conversion of debt into Series C Preferred
Stock by Xxxxx Xxxx or T6-G Limited Partnership.
3. In addition, Commonwealth shall hold itself ready to assist the
Company in evaluating and negotiating particular contracts or transactions, if
requested to do so by the Company, upon reasonable notice, and will undertake
such evaluations and negotiations upon prior written agreement as to additional
compensation to be paid by the Company to Commonwealth with respect to such
evaluations and negotiations. Nothing herein shall require the Company to
utilize Commonwealth's services in any particular transactions nor shall limit
the Company's obligations arising under any other agreement or understanding.
4. The Company and Commonwealth further acknowledge and agree that
Commonwealth may act as a finder or financial consultant in various business
transactions in which the Company may be involved, such as mergers, acquisitions
or joint ventures. The Company hereby agrees that in the event Commonwealth
shall introduce to the Company another party or entity, and that as a result of
such introduction, a transaction is consummated, the Company shall pay to
Commonwealth a fee of five (5%) percent of the first $5,000,000 and two and one-
half (2-1/2%) percent of the amount over $5,000,000 of the consideration paid or
received by the Company (or by any subsidiary or affiliated entity of the
Company) in any transaction (including mergers, acquisitions, joint ventures and
other business transactions) consummated by the Company or any subsidiary or
affiliated entity of the Company, which were introduced to the Company by the
Placement Agent. Such fee shall be paid in cash at the closing of the
transaction to which it relates, and shall be payable whether or not the
transaction involves stock, or a combination of stock and cash, or is made on
the installment sale basis. In addition, if the Company shall, within 12 months
immediately following the termination of this Agreement, consummate a
transaction with any party first introduced by Commonwealth to the Company prior
to such termination, the Company shall pay to Commonwealth a fee with respect to
such transaction calculated in accordance with this paragraph.
5. All obligations of Commonwealth contained herein shall be subject
to Commonwealth's reasonable availability for such performance, in view of the
nature of the requested service and the amount of notice received. Commonwealth
shall devote such time and effort to the performance of its duties hereunder as
Commonwealth shall determine is reasonably necessary for such performance.
Commonwealth may look to such others for such factual information, investment
recommendations, economic advice and/or research, upon which to base its advice
to the Company hereunder, as it shall deem appropriate. The Company shall
furnish to Commonwealth all information reasonably relevant to the performance
by Commonwealth of its obligations under this Agreement, or particular projects
as to which Commonwealth is acting as advisor, which will permit Commonwealth to
know all facts material to the advice to be
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rendered, and all material or information reasonably requested by Commonwealth.
In the event that the Company fails or refuses to furnish any such material or
information reasonably requested by Commonwealth, and thus prevents or impedes
Commonwealth's performance hereunder, any inability of Commonwealth to perform
shall not be a breach of its obligations hereunder.
6. Nothing contained in this Agreement shall limit or restrict the
right of Commonwealth or of any partner, employee, agent or representative of
Commonwealth, to be a partner, director, officer, employee, agent or
representative of, or to engage in, any other business, whether of a similar
nature or not, nor to limit or restrict the right of Commonwealth to render
services of any kind to any other corporation, firm, individual or association.
7. Commonwealth will hold in confidence any confidential information
which the Company provides to Commonwealth pursuant to this Agreement unless the
Company gives Commonwealth permission in writing to disclose such confidential
information to a specific third party. In addition, all confidential
information which the Company provided to Commonwealth in connection with any
prior or ongoing offering shall be considered confidential information for
purposes of this Agreement. Notwithstanding the foregoing, Commonwealth shall
not be required to maintain confidentiality with respect to information (i)
which is or becomes part of the public domain; (ii) of which it had independent
knowledge prior to disclosure; (iii) which comes into the possession of
Commonwealth in the normal and routine course of its own business from and
through independent non-confidential sources; or (iv) which is required to be
disclosed by Commonwealth by governmental requirements. If Commonwealth is
requested or required (by oral questions, interrogatories, requests for
information or document subpoenas, civil investigative demands, or similar
process) to disclose any confidential information supplied to it by the Company,
or the existence of other negotiations in the course of its dealings with the
Company or its representatives, Commonwealth shall, unless prohibited by law,
promptly notify the Company of such request(s) so that the Company may seek an
appropriate protective order.
8. The Company agrees to indemnify and hold harmless Commonwealth,
its partners, employees, agents, representatives and controlling persons (and
the officers, directors, employees, agents, representatives and controlling
persons of each of them) from and against any and all losses, claims, damages,
liabilities, costs and expenses (and all actions, suits, proceedings or claims
in respect thereof) and any legal or other expenses in giving testimony or
furnishing documents in response to a subpoena or otherwise (including, without
limitation, the cost of investigating, preparing or defending any such action,
suit, proceeding or claim, whether or not in connection with any action, suit,
proceeding or claim in which Commonwealth is a party), as and when incurred,
directly or indirectly, caused by, relating to, based upon or arising out of
Commonwealth's services pursuant to this Agreement. The Company further agrees
that Commonwealth shall incur no liability to the Company or any other party on
account of this Agreement or any acts or omissions arising out of or related to
the actions of Commonwealth relating to this Agreement or the performance or
failure to perform any services under this
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Agreement except for Commonwealth's intentional or willful misconduct. This
paragraph shall survive the termination of this Agreement.
9. This Agreement may not be transferred, assigned or delegated by
any of the parties hereto without the prior written consent of the other party
hereto.
10. The failure or neglect of the parties hereto to insist, in any
one or more instances, upon the strict performance of any of the terms or
conditions of this Agreement, or their waiver of strict performance of any of
the terms or conditions of this Agreement, shall not be construed as a waiver or
relinquishment in the future of such term or condition, but the same shall
continue in full force and effect.
11. This Agreement is for a term of 12 months and may not be
terminated by the Company. This Agreement may be terminated by Commonwealth at
any time upon 30 days' notice. Paragraphs 4, 7 and 8 shall survive the
expiration or termination of this Agreement under all circumstances.
12. Any notices hereunder shall be sent to the Company and to
Commonwealth at their respective addresses set forth above. Any notice shall be
given by registered or certified mail, postage prepaid, and shall be deemed to
have been given when deposited in the United States mail. Either party may
designate any other address to which notice shall be given, by giving written
notice to the other of such change of address in the manner herein provided.
13. This Agreement has been made in the State of New York and shall
be construed and governed in accordance with the laws thereof without giving
effect to principles governing conflicts of law.
14. This Agreement contains the entire agreement between the parties,
may not be altered or modified, except in writing and signed by the party to be
charged thereby, and supersedes any and all previous agreements between the
parties relating to the subject matter hereof.
15. This Agreement shall be binding upon the parties hereto, the
indemnified parties referred to in Section 7, and their respective heirs,
administrators, successors and permitted assigns.
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If you are in agreement with the foregoing, please execute two copies
of this letter in the space provided below and return them to the undersigned.
Very truly yours,
COMMONWEALTH ASSOCIATES
By:_______________________________________
An Authorized Representative
ACCEPTED AND AGREED TO AS OF
THE DATE FIRST ABOVE WRITTEN
MEDCROSS, INC.
By:___________________________
Name:
Title:
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