EXHIBIT 10.1
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement"), effective as of July 9, 2001 is
entered into by and between HYPERTENSION DIAGNOSTICS (herein referred to as the
"Company") and REDWOOD CONSULTANTS, LLC, a California limited liability company
(herein referred to as the "Consultant").
RECITALS
WHEREAS, Company is a publicly-held corporation with its common stock traded on
the Nasdaq Market;
WHEREAS, Company desires to engage the services of Consultant to represent the
company in investors' communications and public relations with existing
shareholders, brokers, dealers and other investment professionals as to the
Company's current and proposed activities, and to consult with management
concerning such Company activities;
NOW THEREFORE, in consideration of the promises and the mutual covenants and
agreements hereinafter set forth, the parties hereto covenant and agree as
follows:
1. Term of Consultancy. Company hereby agrees to retain the
Consultant to act in a consulting capacity to the Company and
the Consultant hereby agrees to provide services to the
Company commencing July 9, 2001 and ending on July 8, 2002.
2. Duties of Consultant. The Consultant agrees that it will
generally provide the following specified consulting services
through its officers and employees during the term specified
in Section
(a) Consult and assist the Company in developing and implementing
appropriate plans and means for presenting the Company and its business plans,
strategy and personnel to the financial community, establishing an image for the
Company in the financial community, and creating the foundation for subsequent
financial public relations efforts;
(b) Introduce the Company to the financial community;
(c) With the cooperation of the Company, maintain an awareness during
the term of this Agreement of the Company's plans, strategy and personnel, as
they may evolve during such period, and consult and assist the Company in
communicating appropriate information regarding such plans, strategy and
personnel to the financial community;
(d) Assist and consult the Company with respect to its (i) relations
with stockholders, (ii) relations with brokers, dealers, analysts and other
investment professionals, and (iii) financial public relations generally;
(e) Perform the functions generally assigned to stockholder relations
and public relations departments in major corporations, including responding to
telephone and written inquiries (which may be referred to the Consultant by the
Company); preparing press releases for the Company with the Company's
involvement and approval of press releases, reports and other communications
with or to shareholders, the investment community and the general public;
consulting with respect to the timing, form, distribution and other matters
related to such releases, reports and communications; and, at the Company's
request and subject to the Company's securing its own rights to the use of its
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names, marks, and logos, consulting with respect to corporate symbols, logos,
names, the presentation of such symbols, logos and names, and other matters
relating to corporate image;
(f) Upon the Company's direction and approval, disseminate information
regarding the Company to shareholders, brokers, dealers, other investment
community professionals and the general investing public;
(g) Upon the Company's approval, conduct meetings, in person or by
telephone, with brokers, dealers, analysts and other investment professionals to
communicate with them regarding the Company's plans, goals and activities, and
assist the Company in preparing for press conferences and other forums involving
the media, investment professionals and the general investment public;
(h) At the Company's request, review business plans, strategies,
mission statements budgets, proposed transactions and other plans for the
purpose of advising the Company of the public relations implications thereof;
and,
(i) Otherwise perform as the Company's consultant for public relations
and relations with financial professionals.
3. Allocation of Time and Energies. The Consultant hereby promises to perform
and discharge faithfully the responsibilities which may be assigned to the
Consultant from time to time by the officers and duly authorized representatives
of the Company in connection with the conduct of its financial and public
relations and communications activities, so long as such activities are in
compliance with applicable securities laws and regulations. Consultant and staff
shall diligently and thoroughly provide the consulting services required
hereunder. Although no specific hours-per-day requirement will be required,
Consultant and the Company agree that Consultant will perform the duties set
forth herein above in a diligent and professional manner. The parties
acknowledge and agree that a disproportionately large amount of the effort to be
expended and the costs to be incurred by the Consultant and the benefits to be
received by the Company are expected to occur within or shortly after the first
two months of the effectiveness of this Agreement. It is explicitly understood
that Consultant's performance of its duties hereunder will in no way be measured
by the price of the Company's common stock, nor the trading volume of the
Company's common stock. It is also understood that the Company is entering into
this Agreement with Redwood Consultants, LLC, a limited liability company and
not any individual member of RWC, and, as such, Consultant will not be deemed to
have breached this Agreement if any member, officer or director of RWC leaves
the firm or dies or becomes physically unable to perform any meaningful
activities during the term of the Agreement, provided the Consultant otherwise
performs its obligations under this Agreement.
4. Remuneration. As full and complete compensation for services described in
this Agreement, the Company shall compensate RWC as follows:
4.1 For undertaking this engagement and for other good and valuable
consideration, the Company agrees to issue to the Consultant a "Commencement
Bonus" consisting of 200,000 shares of the Company's Common Stock ("Common
Stock"), and 300,000 warrants ("Warrants") carrying the following strike prices:
100,000 warrants at $5.00, 100,000 warrants at $7.50, and 100,000 warrants at
$10. The said securities (Common Stock and Warrants) shall have "piggy back"
rights to any eligible registration statement the Company files. The said
securities are to be delivered to Consultant within ten (10) business days of
the signing of this Agreement. This Commencement Bonus shall be issued to the
Consultant immediately following execution of this Agreement and shall, when
issued and delivered to Consultant, be fully paid and non-assessable. The
Company understands and agrees
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that Consultant has foregone significant opportunities to accept this engagement
and that the Company derives substantial benefit from the execution of this
Agreement and the ability to announce its relationship with Consultant. The
Commencement Bonus constitutes payment for Consultant's agreement to consult to
the Company and is a nonrefundable, non-apportionable, and non-ratable retainer;
such Commencement Bonus is not a prepayment for future services. If the Company
decides to terminate this Agreement prior to July 9, 2002 for any reason
whatsoever, it is agreed and understood that Consultant will not be requested or
demanded by the Company to return any of the Commencement Bonus paid to it
hereunder. Further, if and in the event the Company is acquired in whole or in
part, during the term of this agreement, it is agreed and understood Consultant
will not be requested or demanded by the Company to return any of the
Commencement Bonus paid to it hereunder. It is further agreed that if at any
time during the term of this agreement, the Company or substantially all of the
Company's assets are merged with or acquired by another entity, or some other
change occurs in the legal entity that constitutes the Company, the Consultant
shall retain and will not be requested by the Company to return any of the
Commencement Bonus.
4.2 The Commencement Bonus shares issued pursuant to this agreement
shall be issued in the names of Xxxxxxx X. Xxxxxxxxx (70,000 shares, 105,000
Warrants (35-35-35)) and Xxxx Xxxxxxxxx (70,000 shares, 105,000 Warrants
(35-35-35)) Xxxx Xxxxxxxxx (60,000 shares, 90,000 Warrants (30-30-30))
4.4 With each transfer of shares of Common Stock to be issued pursuant
to this Agreement (collectively, the "Shares"), Company shall cause to be issued
a certificate representing the Common Stock and a written opinion of counsel for
the Company stating that said shares are validly issued, fully paid and
non-assessable and that the issuance and eventual transfer of them to Consultant
has been duly authorized by the Company. Company warrants that all Securities
issued to Consultant pursuant to this Agreement shall have been validly issued,
fully paid and non-assessable and that the issuance and any transfer of them to
Consultant shall have been duly authorized by the Company's board of directors.
4.5 Consultant acknowledges that the shares of Common Stock to be
issued pursuant to this Agreement (collectively, the "Shares") have not been
registered under the Securities Act of 1933, and accordingly are "restricted
securities" within the meaning of Rule 144 of the Act. As such, the Shares may
not be resold or transferred unless the Company has received an opinion of
counsel reasonably satisfactory to the Company that such resale or transfer is
exempt from the registration requirements of that Act.
4.6 In connection with the acquisition of Shares hereunder, the
Consultant represents and warrants to the Company, to the best of its/his
knowledge, as follows:
(a) Consultant acknowledges that the Consultant has been afforded the
opportunity to ask questions of and receive answers from duly authorized
officers or other representatives of the Company concerning an investment in the
Shares, and any additional information which the Consultant has requested.
(b) Consultant's investment in restricted securities is reasonable in
relation to the Consultant's net worth, which is in excess of ten (10) times the
Consultant's cost basis in the Shares. Consultant has had experience in
investments in restricted and publicly traded securities, and
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Consultant has had experience in investments in speculative securities and other
investments which involve the risk of loss of investment. Consultant
acknowledges that an investment in the Shares is speculative and involves the
risk of loss. Consultant has the requisite knowledge to assess the relative
merits and risks of this investment without the necessity of relying upon other
advisors, and Consultant can afford the risk of loss of his entire investment in
the Shares. Consultant is (i) an accredited investor, as that term is defined in
Regulation D promulgated under the Securities Act of 1933, and (ii) a purchaser
described in Section 25102 (f) (2) of the California Corporate Securities Law of
1968, as amended.
(c) Consultant is acquiring the Shares for the Consultant's own account
for long-term investment and not with a view toward resale or distribution
thereof except in accordance with applicable securities laws.
5. Financing "Finder's Fee". It is understood that in the event Consultant
introduces Company, or its nominees, to a lender or equity purchaser, not
already having a preexisting relationship with the Company, with whom Company,
or its nominees, ultimately finances or causes the completion of such financing,
Company agrees to compensate Consultant for such services with a "finder's fee"
in the amount of 3% of total gross funding provided by such lender or equity
purchaser, such fee to be payable in cash. This 3% will be in addition to any
fees payable by Company to any other intermediary, if any, which shall be the
subject of separate agreements negotiated between Company and such other
intermediary. It is also understood that in the event Consultant introduces
Company, or its nominees, to an acquisition candidate, either directly or
indirectly through another intermediary, not already having a preexisting
relationship with the Company, which Company, or its nominees, ultimately
acquires or causes the completion of such acquisition, Company agrees to
compensate Consultant for such services with a "finder's fee" in the amount of
2% of total gross consideration provided by such acquisition, such fee to be
payable in cash. This 2% will be in addition to any fees payable by Company to
any other intermediary. It is specifically understood that Consultant is not and
does not hold itself out be a Broker/Dealer, but is rather merely a "Finder" in
reference to the Company procuring financing sources and acquisition candidates.
Any obligation to pay a "Finder's Fee" hereunder shall survive the merging,
acquisition, or other change in the form of entity of the Company and to the
extent it remains unfulfilled shall be assigned and transferred to any successor
to the Company.
5.1 It is further understood that Company, and not Consultant, is
responsible to perform any and all due diligence on such lender, equity
purchaser or acquisition candidate introduced to it by Consultant under this
Agreement, prior to Company receiving funds or closing on any acquisition.
However, Consultant will not introduce any parties to Company about which
Consultant has any prior knowledge of questionable, unethical or illicit
activities.
5.2 Company agrees that said compensation to Consultant shall be paid
in full at the time said financing or acquisition is closed, such compensation
to be transferred by Company to Consultant within seven (7) business days of the
execution of the financing of acquisition closing document.
Payment of said compensation, shall be a condition precedent to the closing of
such financing or acquisition, and Company shall execute any and all documents
necessary to effect said compensation.
5.3 As further consideration to Consultant, Company, or its nominees,
agrees to pay with respect to any financing or acquisition candidate provided
directly or indirectly to the Company by
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any lender or equity purchaser covered by this Section 5 during the period of
one year from the close of the term of this Agreement, a fee to Consultant equal
to that outlined in Section 5 herein.
5.4 Consultant will notify Company of introductions it makes for
potential sources of financing or acquisitions in a timely manner (within
approximately 3 days of introduction) via facsimile memo. If Company has a
preexisting relationship with such nominee and believes such party should be
excluded from this Agreement, then Company will notify Consultant immediately
within twenty-four (24) hours of Consultant's facsimile to Company of such
circumstance via facsimile memo.
6. Non-Assignability of Services. Consultant's services under this contract are
offered to Company only and may not be assigned by Company to ant entity with
which Company merges or which acquires the Company or substantially all of its
assets. In the event of such merger or acquisition, all compensation to
Consultant herein under the schedules set forth herein shall remain due and
payable, and any compensation received by the Consultant may be retained in the
entirety by Consultant, all without any reduction or pro-rating and shall be
considered and remain fully paid and non-assessable. Notwithstanding the
non-assignability of Consultant's services, Company shall assure that in the
event of any merger, acquisition, or similar change of form of entity, that its
successor entity shall agree to complete all obligations to Consultant,
including the provision and transfer of all compensation herein, and the
preservation of the value thereof consistent with the rights granted to
Consultant by the Company herein, and to Shareholders.
7. Expenses. Consultant agrees to pay for all its expenses (phone, labor, etc.),
other than extraordinary items (travel required by/or specifically requested by
the Company, luncheons or dinners to large groups of investment professionals,
mass faxing to a sizable percentage of the Company's constituents, investor
conference calls, print advertisements in publications, etc.) approved by the
Company prior to its incurring an obligation for reimbursement.
8. Indemnification. The Company warrants and represents that all oral
communications, written documents or materials furnished to Consultant by the
Company with respect to financial affairs, operations, profitability and
strategic planning of the Company are accurate and Consultant may rely upon the
accuracy thereof without independent investigation. The Company will protect,
indemnify and hold harmless Consultant against any claims or litigation
including any damages, liability, cost and reasonable attorney's fees as
incurred with respect thereto resulting from Consultant's communication or
dissemination of any said information, documents or materials excluding any such
claims or litigation resulting from Consultant's communication or dissemination
of information not provided or authorized by the Company.
9. Representations. Consultant represents that it is not required to maintain
any licenses and registrations under federal or any state regulations necessary
to perform the services set forth herein. Consultant acknowledges that, to the
best of its knowledge, the performance of the services set forth under this
Agreement will not violate any rule or provision of any regulatory agency having
jurisdiction over Consultant. Consultant acknowledges that, to the best of its
knowledge, Consultant and its officers and directors are not the subject of any
investigation, claim, decree or judgment involving any violation of the SEC or
securities laws. Consultant further acknowledges that it is not a securities
Broker Dealer or a registered investment advisor. Company acknowledges that, to
the best of its knowledge, that it has not violated any rule or provision of any
regulatory agency having jurisdiction over the Company. Company acknowledges
that, to the best of its knowledge, Company
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is not the subject of any investigation, claim, decree or judgment involving any
violation of the SEC or securities laws.
10. Legal Representation. The Company acknowledges that it has been represented
by independent legal counsel in the preparation of this Agreement. Consultant
represents that it has consulted with independent legal counsel and/or tax,
financial and business advisors, to the extent the Consultant deemed necessary.
11. Status as Independent Contractor. Consultant's engagement pursuant to this
Agreement shall be as independent contractor, and not as an employee, officer or
other agent of the Company. Neither party to this Agreement shall represent or
hold itself out to be the employer or employee of the other. Consultant further
acknowledges the consideration provided hereinabove is a gross amount of
consideration and that the Company will not withhold from such consideration any
amounts as to income taxes, social security payments or any other payroll taxes.
All such income taxes and other such payment shall be made or provided for by
Consultant and the Company shall have no responsibility or duties regarding such
matters. Neither the Company or the Consultant possess the authority to bind
each other in any agreements without the express written consent of the entity
to be bound.
12. Attorney's Fee. If any legal action or any arbitration or other proceeding
is brought for the enforcement or interpretation of this Agreement, or because
of an alleged dispute, breach, default or misrepresentation in connection with
or related to this Agreement, the successful or prevailing party shall be
entitled to recover reasonable attorneys' fees and other costs in connection
with that action or proceeding, in addition to any other relief to which it or
they may be entitled.
13. Waiver. The waiver by either party of a breach of any provision of this
Agreement by the other party shall not operate or be construed as a waiver of
any subsequent breach by such other party.
14. Notices. All notices, requests, and other communications hereunder shall be
deemed to be duly given if sent by U.S. mail, postage prepaid, addressed to the
other party at the address as set forth herein below:
To the Company:
Hypertension Diagnostics
Xxxxxxx X. Xxxxxxx, Chairman
0000 Xxxxxx Xxxx
Xxxxx 000
Xxxxx, XX. 00000
To the Consultant:
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Redwood Consultants, LLC
Xxxxxxx X Xxxxxxxxx, Managing Director
Xxxx Xxxxxxxxx, Managing Director
00 Xxxxxxxxxxxx Xxxxxx
Xxxx Xxxxxx, XX 00000
It is understood that either party may change the address to which
notices for it shall be addressed by providing notice of such change to the
other party in the manner set forth in this paragraph.
15. Choice of Law, Jurisdiction and Venue. This Agreement shall be governed by,
construed and enforced in accordance with the laws of the State of California.
The parties agree that San Francisco County, CA. will be the venue of any
dispute and will have jurisdiction over all parties.
16. Arbitration. Any controversy or claim arising out of or relating to this
Agreement, or the alleged breach thereof, or relating to Consultant's activities
or remuneration under this Agreement, shall be settled by binding arbitration in
California, in accordance with the applicable rules of the American Arbitration
Association, and judgment on the award rendered by the arbitrator(s) shall be
binding on the parties and may be entered in any court having jurisdiction as
provided by Paragraph 14 herein. The provisions of Title 9 of Part 3 of the
California Code of Civil Procedure, including section 1283.05, and successor
statutes, permitting expanded discovery proceedings shall be applicable to all
disputes that are arbitrated under this paragraph.
17. Complete Agreement. This Agreement contains the entire agreement of the
parties relating to the subject matter hereof. This Agreement and its terms may
not be changed orally but only by an agreement in writing signed by the party
against whom enforcement of any waiver, change, modification, extension or
discharge is sought.
AGREED TO:
"Company"
Hypertension Diagnostics
Date: By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxxx, Chairman
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"Consultant"
REDWOOD CONSULTANTS, LLC
Date: By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxxxxx, Managing Director
By: /s/ Xxxx Xxxxxxxxx
----------------------------------------
Xxxx Xxxxxxxxx, Managing Director
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