CONSULTING AGREEMENT
BY AND AMONG
MEDCROSS, INC.
KALO ACQUISITIONS, L.L.C.
AND
XXXXX X. XXXXXX
THIS AGREEMENT (the "Agreement") is entered into as of this 1st
day of September, 1995, by and among Medcross, Inc., a Delaware
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 company 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 five (5) months commencing September 1,
1995 (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 Company in locating, assessing and implementing
the acquisition by the Company, by way of private or open market
purchases of stock, purchase of assets, merger, tender offer, joint
venture or otherwise, the acquisition by the Company 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 Company;
(b) Prepare and distribute, with the Company'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 Company's prior approval,
investor relations packages;
(d) Provide a dedicated "800" toll-free telephone number for
investors to utilize;
(e) Coordinate broker presentations to be held a minimum of
four (4) times per year;
(f) Prepare and disseminate, with the Company's prior
approval, information about the Corporation to investors;
(g) Present and introduce the Corporation to broker/dealers,
fund managers and analysts on a continual basis;
(h) Prepare and disseminate, with the Company's prior
approval, press releases in compliance with any applicable
regulatory guidelines to wire/news services;
(i) 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;
(j) Assist with the set up of annual and special shareholder
meetings;
(k) Provide for the production and presentation, with the
Company's prior approval, on national/local television stations of
infomercials about the Corporation;
(l) Perform such other services as may be reasonably requested
from time to time by the officers of the Corporation;
(m) Reimburse Kalo for its costs related to the use of any of
its resources as contemplated herein;
(n) 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
(o) 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 aggregate of up to fifty thousand (50,000) shares of its common
stock, par value $.007 per share (the "Common Stock") as follows:
(a) twenty-five thousand (25,000) shares of Common Stock shall
be issued upon execution of this Agreement; and
(b) five thousand (5,000) shares of Common Stock shall be
issuable thereafter on the last day of each month during the Term of
this Agreement.
It is specifically understood and agreed that one-half of the
compensation set forth in Section 3(b) shall be allocated to the
services contemplated to be provided pursuant to Section 2(a) hereof
and the entirety of the balance of the compensation provided in
Sections 3(a) and 3(b) shall be allocated to the remainder of the
services to be provided pursuant to Section 2 of this Agreement.
4. Registration Rights. The Corporation shall file,
contemporaneously with 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 the effectiveness of such registration statement 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) the shares of Common Stock issuable hereunder have not
previously been the subject of registration under the Act or any
applicable state securities laws;
(b) the Consultant may not sell or otherwise transfer such
shares unless they 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 hereto 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 such securities
have 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 foregoing
shares of Common Stock to restrict the transfer thereof.
5. Representations and Warranties. The Consultant hereby
represents and warrants that:
(a) the Consultant will not sell the shares of Common Stock
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 and June 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 fifteen (15) 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
