AGREEMENT
AGREEMENT made in duplicate, effective May 7, 1996, by and
between XXXXXXX MEDICAL PRODUCTS, a Utah corporation ("Xxxxxxx")
and NEURO NAVIGATIONAL CORPORATION, a Delaware corporation (the
"Company").
RECITALS:
A. Effective July 17, 1995, the parties entered into a
Stock Purchase and Option Agreement (the "Option Agreement").
X. Xxxxxxx purchased the Option (as defined in the Option
Agreement) pursuant to the Option Agreement on or about November
14, 1995.
X. Xxxxxxx is now desirous of selling the Option, and the
parties desire to enter into certain agreements related thereto.
It is possible that the transaction may, alternatively, be
structured as a sale of the Company or its assets.
D. On or about May 7, 1996, Xxxxxxx and the Company entered
into an engagement letter with Vector Securities International,
Inc. ("Vector"), pursuant to which Xxxxxxx and the Company engaged
Vector to assist them in the sale of greater than a majority of the
business, assets or stock of the Company which sale might also
involve a sale of all or a portion of the Option, and/or the
consummation of one or more Strategic Alliances (as defined
therein) involving less than a majority of the Company's business,
assets or stock (the "Engagement Letter"), a copy of which
Engagement Letter is attached to this Agreement as Exhibit A and
made a part hereof by reference.
E. Simultaneously with the parties execution of the
Engagement Letter, Xxxxxxx and the Company also executed an
indemnity letter with Vector (the "Indemnity Letter"), a copy of
which Indemnity Letter is attached to this Agreement as Exhibit B
and made a part hereof by reference.
NOW, THEREFORE, in consideration of the mutual covenants and
conditions contained herein and also the covenants and conditions
set forth in the Option Agreement, the parties agree as follows:
1. Definitions. For all purposes of this Agreement, the
following terms shall have the meaning indicated below:
(a) "Engagement Letter" shall mean that certain letter
agreement dated May 7, 1996, from Vector to the Company and
Xxxxxxx.
(b) "Indemnity Letter" shall mean that certain letter
agreement dated May 7, 1996 to Vector from the Company and Xxxxxxx.
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(c) "Net Proceeds" shall mean the aggregate
consideration (as described and defined in the Engagement Letter)
paid by the Purchaser or its shareholders in the consummated
Transaction, minus all of the following:
(i) All payments and reimbursements described in
paragraph 3 below:
(ii) $2,000,000 (representing the purchase price
paid by Xxxxxxx for its Preferred Shares in the Company), reduced
by the cash redemption price for the Preferred Shares paid by the
Company to Xxxxxxx pursuant to Section 2.5 of the Option Agreement;
and
(iii) The Asset Purchase Price under Section 3.5 of
the Option Agreement.
(d) "Purchaser" shall mean the entity which purchases
the Option.
(e) "Transaction" shall mean (i) Xxxxxxx'x sale and
Purchaser's purchase of the Option as well as Purchaser's exercise
of the Option and purchase of the Assets, (ii) Xxxxxxx'x exercise
of the Option, purchase of the Assets and sale of the Assets to
Purchaser, or (iii) the consummation of any other transaction
contemplated in the Engagement Letter, but in the event of a sale
of the Option, only upon exercise of the Option and purchase of the
Assets.
(f) "Vector" shall mean Vector Securities International,
Inc.
All other proper nouns used herein shall have the meanings set
forth in the Option Agreement.
2. Payment of Indebtedness to Xxxxxxx. Notwithstanding
provisions to the contrary contained in promissory notes between
the Company and Xxxxxxx, all outstanding promissory notes, loans,
and indebtedness owed by the Company to Xxxxxxx will be due and
payable in full by the Company immediately upon the consummation of
any Transaction and receipt by the Company of the proceeds to which
it is entitled under the Transaction.
3. Payment of Expenses. Upon the consummation of a
Transaction:
(a) Xxxxxxx will be promptly reimbursed out of the
proceeds of such transaction for all fees and expenses heretofore
or hereafter paid or incurred to Xxxxxxx X. Xxxxxxx (or his
company, Xxxxxxx & Associates) in connection with Xxxxxxx'x
entering into and performing the Option Agreement and in connection
with the transaction contemplated by the Engagement Letter
(although Xxxxxxx believes that no fee or commission will be owed
to Xx. Xxxxxxx or his company upon the consummation of the
transaction contemplated in the Engagement Letter);
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(b) Xxxxxxx will be promptly reimbursed out of said
proceeds for all fees and expenses heretofore or hereafter paid or
incurred to Vector in connection with the Engagement Letter; and
(c) Xxxxxxx will be reimbursed out of said proceeds for
all of its other expenses paid or incurred in connection with the
Engagement Letter and the transaction contemplated therein.
4. Allocation of Net Proceeds. Xxxxxxx wishes to keep the
Company's management team (the "Management Team") listed on Exhibit
C attached to and made a part of this Agreement by this reference,
intact and to encourage the Management Team to remain with the
Company until consummation of the Transaction, and if the terms and
conditions of the Transaction so provide, for a limited period
thereafter, in order to facilitate an orderly Transaction at the
highest possible purchase price. Consequently, Xxxxxxx agrees with
the Company for the benefit of the Management Team still with the
Company upon consummation of the Transaction that the Net Proceeds
for the consummated Transaction shall be allocated as follows:
(a) The first $1 million of Net Proceeds will be
allocated and paid to Xxxxxxx;
(b) Of the next $4 million of Net Proceeds, 50% will be
allocated and paid to Xxxxxxx and 50% will be allocated and paid to
the Management Team;
(c) Of the next $5 million of Net Proceeds, 60% will be
allocated and paid to Xxxxxxx and 40% will be allocated and paid to
the Management Team;
(d) All other Net Proceeds will be allocated and paid to
Xxxxxxx; and
(e) Any and all sums payable to the Management Team
pursuant to the foregoing paragraphs shall be immediately paid and
distributed directly by Xxxxxxx, or at the request of Xxxxxxx, by
Purchaser in accordance with the allocations set forth in Exhibit
C. Any and all such payments shall be made contemporaneously with
and as a part of the closing of the Transaction.
5. Right of Contribution.
(a) The parties are jointly and severally liable to
Vector for various matters under the Engagement Letter and under
the Indemnity Letter. The parties desire to allocate
responsibility for such joint and several liability and indemnity
obligations.
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(b) The parties intend that fees and expenses incurred
by Xxxxxxx under the Engagement Letter and Losses paid or incurred
by either party under the Indemnity Letter are to be reimbursed to
them out of the proceeds of the consummated transaction
contemplated in the Engagement Letter.
(c) If the proceeds of any Transaction are not
sufficient to cover such fees, expenses, and Losses then each shall
have a right of contribution against the other for such fees,
expenses, and Losses in order to achieve the following:
(i) All Losses will be allocated and shared in
proportion to the relative amount of Net proceeds received by the
Company (i.e., the Management Team) and Xxxxxxx.
(ii) All fees and expenses under the Engagement
Letter shall be paid solely by Xxxxxxx.
(d) If no Transaction is consummated, then each shall
have a right of contribution against the other for any such fees,
expenses, and Losses in order to achieve the following:
(i) All Losses will be allocated and shared in
proportion to the relative fault of the Company and Xxxxxxx as
determined by a court of competent jurisdiction, if any. If
neither party is at fault, then such Losses shall be allocated and
shared equally.
(ii) All fees and expenses under the Engagement
Letter shall be paid solely by Xxxxxxx.
6. Relationship. The parties do not intend to be and are
not partners or joint venturers.
7. Notices. Except as otherwise provided, all notices and
other communications which are required or permitted hereunder
shall be in writing and sufficient if delivered personally or sent
by a nationally recognized overnight express carrier for next-day
delivery (charges prepaid) or by registered or certified mail,
postage prepaid, addressed as follows:
If to Xxxxxxx: Xxxxxxx Medical Products
00000 Xxxx Xxxx Xxxxxxx
Xxxxxx, Xxxx 00000
Attention: Xxxx X. Xxxxxxx, President
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If to the Company: Neuro Navigational Corporation
0000 Xxxxxxx Xxxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, President
8. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Utah
applicable to agreements made and entirely to be performed within
such jurisdiction except to the extent federal law may be appli-
cable. Any action under this Agreement filed by the Company (other
than a counterclaim in a pending proceeding) may be filed and
maintained only in state or federal courts located within Salt Lake
County, State of Utah, and all parties hereby submit to the
jurisdiction of such courts for such purposes. Any counterclaims
related to such suits shall also be litigated in Salt Lake County.
Any actions filed by Xxxxxxx (other than a counterclaim in a
pending proceeding) may be filed and maintained only in state or
federal courts located within Orange County, State of California.
Any counterclaims relating to such suits shall also be litigated in
Orange County.
9. Litigation Expenses, Remedies. If any action, suit or
proceeding is brought by a party hereto with respect to a matter or
matters covered by this Agreement, all costs and expenses of the
prevailing party incident to such proceeding, including reasonable
attorney's fees, shall be paid by the other party. If either party
breaches this Agreement, the other party shall have the right, in
addition to its other rights and remedies available at law and in
equity, to seek equitable remedies, such as specific performance
and injunction.
10. Successors in Interest. This Agreement shall be binding
upon and inure to the benefit of the successors and assigns of the
parties hereto.
11. Waiver and Modification. This Agreement may not be
amended, modified, superseded or canceled, and none of the terms,
covenants, representations, warranties and conditions, may be
waived except by written instrument executed by the Company and
Xxxxxxx; or, in the case of a waiver, by the party waiving
compliance. Failure of any party at any time or times to require
strict performance of any provision hereof shall not in any manner
affect the right of such party at a later date to enforce the same.
No waiver by any party of the breach of any term, covenant,
representation or warranty contained in this Agreement as a
condition to such party's obligations hereunder, shall constitute a
release or affect any liability resulting from said breach.
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12. Exhibits. All exhibits attached to this Agreement are
expressly made a part of this Agreement as fully as if completely
set forth in it. All references to this Agreement, either in the
Agreement itself or in any of such writings, shall deem to refer to
and include this Agreement, and all such exhibits.
13. Execution by Facsimile and Counterpart. Signatures sent
via facsimile transmission shall constitute original signatures.
The parties may execute counterpart originals of this Agreement.
This Agreement may be executed separately or independently in any
number of counterparts, each and all of which together shall be
deemed to have been executed simultaneously and for all purposes to
be one Agreement.
14. Captions. The respective captions of the sections and
paragraphs of this Agreement are inserted for convenience of
reference only and shall not be deemed to modify or otherwise
affect in any respect the provisions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the day and year first above
written.
XXXXXXX MEDICAL PRODUCTS
By: _________________________
Xxxx X. Xxxxxxx, President
THE COMPANY:
NEURO NAVIGATIONAL CORPORATION
By: _____________________________
Xxxxxxx X. Xxxxxxx, President
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EXHIBIT A
May 7, 1996
Neuro Navigational Corporation
0000 Xxxxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
President and Chief Executive Officer
Xxxxxxx Medical Products
00000 Xxxx Xxxx Xxxxxxx
Xxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx
Chairman, President and Chief Executive Officer
Gentlemen:
(I) This is to confirm our understanding that Vector Securities
International, Inc. ("Vector") has been engaged as exclusive financial
advisor of Xxxxxxx Medical Products ("Xxxxxxx") and Neuro Navigational
Corporation (the "Company") (both companies are hereinafter collectively
referred to as the "Parties") for a period of one year commencing with the
Parties' acceptance of this agreement (the "Initial Period") for the purpose
of assisting the Parties' in conducting discussions and negotiations
leading to: (i) the consummation of a sale of greater than a majority of
the business, assets, or stock of the Company which sale might also involve
the sale of all or a portion of Xxxxxxx'x option to purchase the Company
(the "Xxxxxxx Option"); and/or (ii) the consummation of one or more
Strategic Alliance (as described in Paragraph IV below) or similar
transactions involving less than a majority of the business, assets, or
stock of the Company. In its role as exclusive financial advisor, Vector
will assist the Parties in: (a) identifying prospective acquirors or
partners; (b) preparing appropriate marketing materials; (c) conducting
discussions and negotiations looking toward the consummation of one
or more transaction(s); and (d) if requested by the Parties, providing, in
accordance with our customary practice, an opinion (the "Opinion") to the
Board of Directors of Xxxxxxx with respect to the adequacy or fairness, from
a financial point of view, to Xxxxxxx and its shareholders, of the
consideration to be paid in a Sale (as defined below), it being understood
that the Opinion shall be in such form as Vector shall determine and Vector
may qualify the Opinion in such manner as Vector believes appropriate. The
Opinion shall not address Xxxxxxx'x underlying business decision to effect a
Sale. Vector's engagement hereunder may be extended for additional periods
under the terms set forth herein upon the mutual written agreement of Vector
and the Parties. This Initial Period and any extensions thereof are
hereinafter referred to as the "Engagement Period."
(II) The Parties will pay a non-refundable retainer fee of $125,000, such
fee to be payable in cash promptly upon the execution of this agreement.
Such retainer fee will be credited against any additional fees paid to Vector
pursuant to paragraphs (V) or (VI) this agreement. The Parties also agree
to pay all of our reasonable out-of-pocket expenses up to a maximum of
$20,000 (the "Expense Cap"), including fees and disbursements of our
counsel; such expenses to be paid in cash upon submission of a xxxx or bills
by us from time to time. Vector agrees that it will not make any
expenditures in excess of the Expense Cap without the Parties' prior written
approval, which approval will not be unreasonably withheld.
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(III) In addition to the fees provided in paragraph (II) above, the Parties
will pay Vector a fee of $250,000 upon the date on which Vector advises
Xxxxxxx that it is prepared to deliver the Opinion. Such opinion fee shall
be credited against any additional fees paid to Vector pursuant to
paragraphs (V) or (VI) of this Agreement.
(IV) Vector will conduct such financial review of the Company and its
businesses and operations as Vector deems necessary and feasible for
purposes of rendering the Opinion. Such review will be based upon an
analysis of publicly available information and such other information as
shall be supplied to Vector by the Parties. Vector is not assuming any
responsibility for making or obtaining an independent valuation or appraisal
of the assets or liabilities of the Company or any other entity.
(V) If a sale, merger, consolidation, tender offer, business combination or
similar transaction involving greater than a majority of the business,
assets, or stock of the Company, including a sale of any option or right to
acquire a majority of the business, assets or stock of the Company
(a "Sale") is entered into or consummated (i) within the Engagement Period
with any party, or (ii) not later than one year after the expiration of
such Engagement Period with a party (or any entity controlled by or
affiliated with such party) identified by Vector in writing and
acknowledged by Xxxxxxx (which shall include those parties contacted by
Vector on behalf of the Parties prior to the end of the Engagement Period)
then Vector will be paid a fee equal to the greater of $500,000 or 5% of
the aggregate consideration to be paid by the acquiror or its shareholders
in such transaction, such fee to be payable in cash promptly upon the
closing of such transaction. In the event that the Sale is consummated
through more than one closing or with more than one acquiror, the Parties
agree that the aggregate consideration used to calculate Vector's fee
hereunder shall be the sum total of the aggregate consideration paid or to
be paid in each such closing by each such acquiror. For the purpose of
calculating our fee under this Paragraph (III), the aggregate consideration
paid with respect to the business, assets, stock, options, warrants or
other securities of the Company or the Xxxxxxx Option shall be equal to the
total of all cash, assets, stock, options, warrants or other securities
paid by the acquiror. Aggregate consideration shall also include: (a) any
commercial bank, capital lease obligations or other indebtedness that is
repaid or for which the responsibility to pay is assumed by the acquiror in
connection with the Sale; (b) the greater of the stated value or the
liquidation value of preferred stock that is assumed or acquired by the
acquiror that is not converted into common stock upon the consummation
of such transaction; and (c) future payments for which the acquiror is
obligated either absolutely or upon the attainment of milestones, financial
results, or other future events ("Acquiror Future Payments"). The fee paid
to Vector as a result of Acquiror Future Payments shall be paid when such
Acquiror Future Payments are made. It is further understood that aggregate
consideration shall not be reduced by the amount of the fee due Vector
hereunder. For the purpose of calculating our fee, securities constituting
part of aggregate consideration that are traded on a national securities
exchange or the Nasdaq National Market shall be valued at the last closing
price thereof prior to the date of the consummation or closing of any
such transaction. Such securities which are traded over-the-counter shall
be valued at the mean between the latest bid and asked prices prior to such
date. Any debt or other securities of the acquiror shall be valued at their
fair market value. In the event a Sale is consummated through a multiple-step
transaction wherein the acquiror is obligated either absolutely or upon the
attainment of milestones, financial results, or other future events to make
future payments to further increase its ownership in the Company (the
"Acquiror Multiple-Step Payments"), the Parties agree to pay Vector a fee
on such Acquiror Multiple-Step Payments, and such fee shall be calculated
pursuant to this paragraph (III). Such fee shall be payable when such
Acquiror Multiple-Step Payments are made and shall be in addition to the
fee paid to Vector in the earlier step(s) of such transaction.
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(VI) If an agreement for a Strategic Alliance is entered into or
consummated (i) within the Engagement Period with any party, or (ii) not
later than one year after the termination of such Engagement Period with a
party (or any entity controlled by or affiliated with such party) identified
by Vector in writing and acknowledged by Xxxxxxx (which shall include those
parties contacted by Vector on behalf of the Parties prior to the end of
the Engagement Period) Vector will be paid a fee equal to the greater of
$500,000 or 5% of the aggregate consideration to be paid by the Partner in
each such transaction, such fee to be payable in cash at the time of the
closing of each such Strategic Alliance. The type of transaction
contemplated by a Strategic Alliance will include, but is not limited to:
(i) a joint venture, partnership, license or other contract or agreement
relating to the development, manufacturing, marketing, distribution, sale
or other activity relating to the Company's present or future products,
services, technology or the like; (ii) the purchase or commitment by the
Partner to purchase less than a majority of the business, assets or stock
of the Company; (iii) the sale of any rights in respect to the Company's
products, services, technologies or the like; and (iv) a commitment
to provide funding for all or part of the Company's research and development
activities. For the purpose of calculating our fee hereunder, aggregate
consideration shall include, but not be limited to: (a) all payments made at
closing for equity securities, equity security rights or similar rights;
(b) technology access fees, licensing fees or other up-front payments; (c)
other future payments for which the Partner is obligated either absolutely
or upon the attainment of milestones, financial results or other future
events; (d) funding by the Partner (through reimbursement or otherwise)
relative to research and development, clinical trials, regulatory approvals
and related expenditures, whether such work is performed or managed by the
Company or the Partner; and (e) the repayment or assumption by the Partner
of obligations of the Company or Xxxxxxx including indebtedness for money
borrowed or amounts owed to inventors or owners of technology. The fee paid
to Vector as the result of any future rights, commitments, contingent
payments and the like (together, "Strategic Alliance Future Payments")
which are part of the consideration, shall be paid when such Strategic
Alliance Future Payments are made. For purpose of this agreement, Strategic
Alliance shall not include, and Vector shall not be entitled to a fee under
this paragraph VI with respect to, financing for which Vector does not
provide assistance raised by Xxxxxxx X. Worthen, Ballard, and other
shareholders solely for the financing of a venture to develop
interventional radiology and reproductive medicine applications of certain
of the Company's technology.
(VII) Although a number of the references herein relate to a transaction
with the Company, including a possible Sale of or Strategic Alliance with
the Company, it is the Parties' understanding that the transaction might
involve the purchase of the Xxxxxxx Option to purchase the Company either in
whole or in part. The transaction could also involve another form of
transaction relating to the Company and/or Xxxxxxx. Regardless of the form
of the transaction, the Parties agree that all consideration paid to or
involving Xxxxxxx, the Company, or to any of their respective shareholders
or employees in any transaction or series of transactions involving a Sale
or Strategic Alliance, shall be included in the definition of aggregate
consideration even if a component(s) of such consideration does not clearly
fall into such definition. Specifically, the Parties agree that if a Sale
involves the sale or transfer of all or a portion of the Xxxxxxx Option (i)
aggregate consideration shall include the consideration paid for the Xxxxxxx
Option and the aggregate amount payable upon the full exercise of the Xxxxxxx
Option (the "Exercise Price") without taking into account any reductions of,
or credits against, such Exercise Price (including as a result of the
repayment or discharge of indebtedness, the redemption of any preferred
stock or other securities or the crediting of any amounts previously paid
with respect to the Xxxxxxx Option) and (ii) the stated value or liquidation
value of any preferred stock that is acquired in such Sale and redeemed in
connection with the exercise of the Xxxxxxx Option shall not be added to
aggregate consideration. Xxxxxxx and the Company agree to be jointly and
severally liable for the payment of Vector's fees and the reimbursement of
Vector's expenses hereunder.
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(VIII) In order to coordinate the efforts to effect a transaction
satisfactory to the Parties during the Engagement Period, in the event that
the Company or Xxxxxxx or any of their directors, management or shareholders
receive any meaningful inquiry or are otherwise aware of the interest of any
third party concerning any transaction as contemplated in this agreement,
such party agrees to promptly inform Vector of the third party and its
interest and request that Vector perform its services as contemplated
hereunder. Vector hereby acknowledges that the Parties have no obligation
under this letter agreement to proceed with any potential transaction
presented to them by Vector.
(IX) Any financial advice rendered by us pursuant to this agreement
(including any Opinion) may not be disclosed publicly in any manner without
our prior written approval, except as required by law, and will be treated
by us as confidential. The Parties will provide us with all financial and
other information requested by us for the purposes of rendering our
services pursuant to this agreement, and shall provide Vector with
reasonable access to the Parties' officers, directors, employees,
independent accountants and other advisors and agents as Vector shall deem
appropriate. The Parties represent that all information furnished by them
or on their behalf to Vector will be accurate and complete in all material
respects. The Parties recognize and confirm that, in advising the Parties
and in completing its engagement hereunder, Vector will be using and relying
on publicly available information and on data, material, and other
information furnished to Vector by the Parties and other parties. It is
understood that in performing under this engagement Vector may assume and
rely upon the accuracy and completeness of, and is not assuming any
responsibility for independent verification of, such publicly available
information and the other information so furnished.
(X) All non-public information given us by the Parties will be treated by us
as confidential. We may rely, without independent verification, on the
accuracy and completeness of all information furnished to us by the Parties
or any other party or potential party to any transaction contemplated
hereunder.
(XI) Since Vector will be acting on behalf of the Parties in connection with
its engagement hereunder, the Parties and Vector have entered into a
separate letter agreement, dated the date hereof, providing for the
indemnification by the Parties of Vector and certain related entities. A
copy of such letter agreement is attached to this letter.
(XII) It is understood and agreed that Vector and its affiliates may from
time to time make a market in, have a long or short position in, buy and
sell or otherwise effect transactions for customer accounts and for their
own accounts in the securities of, or perform investment banking or other
services for, Xxxxxxx and other entities which are or may be the subject of
the engagement contemplated by this Agreement.
(XIII) This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original and all of which together shall constitute
one and the same agreement. Please confirm that the foregoing is in
accordance with your understanding by signing and returning to us the
enclosed duplicate of this letter.
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Vector Securities International, Inc.
May 7, 1996
Page 5
Sincerely yours,
VECTOR SECURITIES INTERNATIONAL, INC.
By:
W. Xxxxxxx Xxxxxxx
Managing Director
Confirmed as of the date hereof:
NEURO NAVIGATIONAL CORPORATION
By:
Xxxxxxx X. Xxxxxxx
President and Chief Executive Officer
XXXXXXX MEDICAL PRODUCTS
By:
Xxxx X. Xxxxxxx
Chairman, President and Chief Executive Officer
25 of 29
EXHIBIT B
May 7, 1996
Vector Securities International, Inc.
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Gentlemen:
In connection with your engagement by us as set forth in the engagement
letter dated the date hereof (the "Engagement Letter"), we jointly and
severally hereby agree to indemnify and hold harmless you and your
affiliates, the respective directors, officers, stockholders, agents and
employees of you and your affiliates and each other person, if any,
controlling you or any of your affiliates (collectively referred to as
"you" and "your"), to the full extent lawful, from and against all losses,
claims, damages, liabilities and expenses (collectively, "Losses") in-curred
by you (including fees and disbursements of counsel) which (i) are related
to or arise out of actions taken or omitted to be taken (including any
untrue statements made or any statements omitted to be made) by us or by you
with our consent or in conformity with our actions or omissions or (ii) are
otherwise related to or arise out of your activities on our behalf in
connection with your engagement by us, and we will reimburse you for all
expenses (including fees and disbursements of counsel) as they are incurred
by you in connection with investigating, preparing or defending any such
action or claim, whether or not in connection with pending or threatened
litigation in which you are a party. We will not be responsible, however,
for any Losses pursuant to clause (ii) of the preceding sentence to the
extent such losses are finally judicially determined to have resulted from
your willful misfeasance or gross negligence. We also agree that you shall
not have any liability to us for or in connection with such engagement
except to the extent of Losses incurred by us which are finally judicially
determined to have resulted from your willful misfeasance or gross
negligence. We further agree that we will not, without the prior written
consent of Vector Securities International, Inc. ("Vector"), settle or
compromise or consent to the entry of any judgment in any pending or
threatened claim, action, suit or proceeding in respect of which
indemnification may be sought hereunder (whether or not you are an actual
or potential party to such claim, action, suit or proceeding) unless such
settlement, compromise or consent includes an unconditional release of you
from all liability arising out of such claim, action, suit or proceeding.
Payments pursuant to this paragraph shall be paid by us promptly upon our
receipt of a statement(s) from Vector setting forth the amounts with respect
to which indemnification and/or reimbursement is sought pursuant to this
paragraph.
We agree if any indemnification sought by you pursuant to this letter
agreement is unavailable or insufficient to hold you harmless, then (whether
or not Vector is the indemnified person), we and Vector will contribute to
the Losses for which such indemnification is unavailable or insufficient in
such proportion as is appropriate to reflect the relative benefits to, and
the relative fault of, us, on the one hand, and Vector, on the other hand,
in connection with Vector's engagement referred to above, subject to the
limitation that in any event Vector's aggregate contribution to all Losses
with respect to which contribution is available hereunder will not exceed
the amount of fees actually received by Vector from us pursuant to Vector's
engagement referred to above. Our obligations pursuant to this paragraph
will also be joint and several.
26 of 29
Vector Securities International, Inc.
May 7, 1996
Page 2
Our indemnity, reimbursement and contribution obligations under this letter
agreement shall be in addition to any rights that you may have at common
law or otherwise. We hereby consent to personal jurisdiction and service
and venue in any court in which any claim which is subject to this letter
agreement is brought against you. This letter agreement shall be governed
by and construed in accordance with the laws of the State of Illinois
without regard to principles of conflicts of laws. Any right to trial by
jury with respect to any claim or proceeding related to or arising out of
Vector's engagement by us or this agreement is waived. This letter
agreement may be executed in one or more counterparts, each of which shall
be deemed an original and all of which shall constitute one and the same
agreement.
It is understood that, in connection with Vector's above-mentioned
engagement, Vector may also be engaged to act in one or more additional
capacities, and that the terms of the original engagement or any such
additional engagement may be embodied in one or more separate written
agreements. The provisions of this letter agreement shall apply to the
original engagement, any such additional engagement(s) and any modification
of the original engagement or such additional engagement(s) and shall remain
in full force and effect following the completion of termination of Vector's
engagement(s).
Very truly yours,
NEURO NAVIGATIONAL CORPORATION
By:
Xxxxxxx X. Xxxxxxx
President and Chief Executive Officer
XXXXXXX MEDICAL PRODUCTS
By:
Xxxx X. Xxxxxxx
Chairman, President and Chief Executive Officer
Accepted:
VECTOR SECURITIES INTERNATIONAL, INC.
By: ____________________________________
W. Xxxxxxx Xxxxxxx
Managing Director
Date: __________________________________, 1996
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EXHIBIT C
Distribution
Name Percent
Xxxx Xxxxxxx 31.56
Xxxxx Xxxxx 7.69
Xxxxx Xxx 7.69
Xxxxxx Xxxxxx 7.69
Xxxxxxx Xxxxx 7.69
Xxxxxx Xxxxxxxxx 7.69
Xxx Xxxx 7.69
Xxxxx Xxxxxxx 7.69
Xxxx Xxxx 1.29
Xxxxx Xxxx 0.76
Xxxx Xxxxxxx 2.00
Xxx Xx 0.38
Xxxxx Xxxxxxxx 1.55
Xxxxxx Nagakoa 0.78
Xxxxxx Xxxxx 0.96
Xxxxxxx Xxxxxxxx 0.67
Xxxxxxxx Xxxxxx 0.29
Xxxxxxx Xxxxxxx 0.29
Xxxxxx Xxxxxx 0.96
Xxxx Xxxxx 1.10
Xxxxxx Xxx 0.10
Xxxxxx Xxxxxxxxxx 1.10
Xxxxxxx 0.14
Xxxxx Xxxxxxx 1.43
Xxxx Xxxxxx 0.14
Xxxx Xxxxxxxx 0.19
Xxxx Xxxxxxx 0.48
Total 100.00
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