Exhibit 10.32
CONSULTING AND ASSISTANCE AGREEMENT
AGREEMENT dated this ____ day of April, 1999, by and between SURGICAL SAFETY
PRODUCTS, INC., a Florida corporation with a principal place o business at 0000
Xxx Xxxxxxx, Xxxxxxxx, Xxxxxxx 00000 (hereinafter the "Company"), and THE KORITZ
GROUP, LLC, a Connecticut limited liability company in formation with a
principal place of business at 00 Xxx Xxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000
(hereinafter "Koritz").
WITNESSETH:
WHEREAS, Koritz is, inter alia, engaged in the business of identifying,
reviewing, analyzing, structuring and implementing various and diverse business
and financial relationships and transactions on behalf of its clients;
WHEREAS, the Company has expressed an interest in retaining Xxxxxx, on a
non-exclusive basis, to provide consulting services in connection with the
review, analysis, structure and , if feasible, implementation of various and
diverse business and financial relationships and transactions; and
WHEREAS, Xxxxxx is prepared to use its best efforts, expertise and network of
clients and contacts to provide said consultation services to the Company.
NOW, THEREFORE, in consideration of the mutual covenants contained, herein, the
parties hereto agree as follows:
1. Engagement
A. The Company hereby engages Xxxxxx, and Xxxxxx hereby accepts to be come
engaged by the Company, as a Consultant to seek to "assist" ( as such term is
hereinafter defined) the Company in accomplishing the following tasks:
(a) initially raise equity or debt financing in an amount up to
Fifteen Million ($15,000,000.00) Dollars, either in lump sum or in staged
financing, as the case may be, and to thereafter raise equity or debt financing
as the Company may request ("Investment Financing");
(b) arrange trade financing for the production, sale, lease, rental
or other disposal of its products and services ("Trade Financing"); and
(c) arrange a sale, a merger, a consolidation of the Company, joint
ventures or strategic alliances with other appropriate businesses ("Business
Arrangements").
B. For the Purpose of this Agreement, as ti concerns Xxxxxx' activities,
"assist" will mean the introduction of a party to the Company, as
evidenced in a writing from Xxxxxx, from whom the Company has not previously
obtained investment or trade financing, with whom the Company is ;not presently
in ;negotiation with for such financing or with whom the Company otherwise has
not done business with and at the request and direction of the Company to assist
the Company in structuring and negotiating an arrangement with such a party. If
the Company obtained financing from, is in negotiation with any party introduced
by Xxxxxx or otherwise has done business with such a party, the Company will
provide evidence of such prior business to Xxxxxx upon its written notification
of such party.
2. Scope of Services and Non-Exclusivity. It is understood and agreed between
the parties that:
(a) Xxxxxx will work in concert with the Company , at each time at
the Company's request, to identify sources of capital and potential business
relations with the objective of arranging meetings and thereafter, at the
Company's request and expense, participate in such meetings, for:
(i) Investment Financing with such parties as venture capital
firms, institutional and strategic investors and investment banks and others
potentially interested in effecting or facilitating an investment into the
Company;
(ii) Trade Financing with such parties as leasing- and
insurance companies and other finance companies; and
(b) the Company will use its best efforts to assist and cooperate
with Xxxxxx in the performance of its duties hereunder, including promptly
providing all information and documentation reasonably requested by Xxxxxx;
(c) Xxxxxx may provide its services at those times (day or evening)
and from those locations (via telephone, telefax and/or e-mail) as mutually
agreed between Xxxxxx and the Company; and
(d) the Company may engage other third parties to assist it in
raising and/or providing investment or trade financing and arranging business
arrangements.
4. Success Fee.
A. Unless otherwise specifically agreed in writing between the parties, in
consideration for the consulting services to be rendered by Xxxxxx hereunder,
the Company will pay Xxxxxx a fee (the "Success Fee") if Xxxxxx successfully
assists the Company to:
(a) secure Trade Financing, a Success Fee equal to two and one-half
(2.5%)percent of the aggregate amounts of such Trade Financing, payable in cash
each time and for so long as the Company avails itself of such Trade Financing;
(b) arrange Business Arrangements, a Success Fee equal to ten (10%)
percent of the value of each such Business Arrangement, payable in the same
currency (cash or in kind, as the case may be) at each closing thereof and /or
thereafter as the Company and/or its shareholders receive
remuneration and/or benefits deriving from such Business Arrangement.
Notwithstanding the foregoing, if the value of a business Arrangement is not
readily ascertainable at each closing thereof, as Xxxxxx in its sole judgement
shall determine, the Success Fee due at such closing will be computed in arrears
over a period of sixty (60) months as of the end of each anniversary date from
the date of such closing and be paid on or before the fifteenth (15th) day
following each such anniversary date.
B. All cash remuneration to which Xxxxxx is entitled will be paid via wire
transfer into such bank account as Xxxxxx may direct.
C. The Company will be free to accept or reject any prospective Investment
Financing, Trade Financing or Business Arrangement Xxxxxx proposes b so
notifying Xxxxxx in writing. Notwithstanding, if the Company enters into an
arrangement for Investment financing, Trade Financing or Business Arrangement
within one hundred eighty (180) days following its written notice of rejection
on terms and conditions less favorable to the Company (excluding computation of
the Success Fee), the Company will pay Xxxxxx the sum of One Hundred Thousand
(100,000.00) Dollars at each such closing thereon.
5. Investment Financing. In the event Investment Financing is secured, the
Company will pay compensation equal to ten percent (10%) of the amount of equity
or debt raised as a success fee to the person or entity placing such equity or
debt; provided that such person or entity is qualified to receive such
compensation in the state of residence of the investor, and in addition, the
Company will issue warrants, exercisable at any time up to the last business day
of the thirty sixth (36th) month from the date of each such closing, and which
will provide that such person or entity will have the right to acquire equity
securities of the Company of the same class and at the same price as the party
making the Investment Financing is entitled, if any, each time up to the amount
of the Success Fee. The said warrant and underlying securities will be issued to
Xxxxxx subject to usual and standard restrictions, such as restrictions pursuant
to Rule 144 under the Securities Act of 1933, as amended (the "Act"), and rights
and privileges, such as:
(a) pre-emptive and anti-dilution rights; in the event of a change or
adjustment in or to the Company's capital structure and/or total number of
outstanding securities, each warrant, if and when issued, and the underlying
securities will be subject to standard proportional dilution and, if provided to
other, pre-emptive rights, and the appropriate proportional adjustments will be
made in the number and/or kind of underlying securities for which the
unexercised portion of warrant may thereafter be exercised; and
(b) piggy back registration; if the party making the Investment Financing
is granted the right to register his/its securities, such person or entity will
have the same right of registration at the Company's sole cost and expense.
5. Conflict. The Company expressly understands that Xxxxxx and/or its managers,
partners, shareholders, officers, directors, affiliates or representatives may
have an ownership interest in, be a director or officer of, or otherwise be in a
contractual relationship with a party (a) from whom the Company may obtain
Investment Financing or Trade Financing, (b) with whom the Company may enter
into a Business Arrangement, or (c) from whom/which Xxxxxx, et al., may receive
compensation independent of, and in addition to, the Success Fee due and payable
pursuant to this Agreement. The Company hereby expressly waives and all direct
or indirect conflict that may arise from any such relationships; provided that
in each instance the Company has been informed of its existence.
6. "No Shopping".
A. In the event the Company discloses the existence or contents of any
letter of intent or other documentation procured by Xxxxxx in respect of any
Investment Financing, Trade Financing or Business Arrangement to any third party
for the purpose of seeking to obtain financing or establishing a business
relationship without having first obtained Xxxxxx'x written consent each time,
the Company's right of termination will be waived until Xxxxxx has been
compensated as follows: (a) this Agreement will remain in effect in accordance
with its terms, (b) any third party to whom unauthorized information was
disclosed, directly or indirectly, will be deemed Investment Financing, Trade
Financing or a Business Arrangement, as the case may be, procured by Xxxxxx
pursuant to this Agreement, and (c) Xxxxxx will be entitled in each such
instance to the Success Fee as herein provided.
B. To prevent any such unauthorized disclosure, the Company will make its
best efforts to exercise such control and take such actions as are necessary and
appropriate with respect to the officers, directors and employees of the Company
and related companies controlling, controlled by or under common control with
the Company.
7. Expenses. Forthwith upon its submission of an invoice therefor to the
Company, the Company will reimburse Xxxxxx for any pre-approved disbursements or
expenses advanced by Xxxxxx on behalf of the Company in the performance of this
Agreement.
8. Confidentiality and Non-Circumvention.
A. Each party will treat information provided by the other party pursuant
to this Agreement as confidential ( as it relates to the Company, the
"Confidential Information"; as it relates to Xxxxxx, the "Confidential
Contacts"). The recipient thereof will not, directly or indirectly (a) transfer
or disclose any Confidential Information or Confidential Contacts, as the case
may be, to any third party (other than its representatives as hereinafter
provided or otherwise as required by law), (b) use any Confidential Information
or Confidential Contacts, as the case may be, for any purpose other than for its
representatives without the prior written approval of the disclosing party.
B. As used herein:
(a) as it relates to the Company, "Confidential Information" will
include, regardless of the medium, all confidential and proprietary information
so marked when disclosed, including financial data, research, know-how, test
data, technology, and other trade secrets relating to the Company, furnished or
made available by the Company. Notwithstanding the foregoing, the Company's
Confidential Information will not include information Xxxxxx can evidence was
prior to its receipt (i) in the public domain (other than as a result of a
breach of this Agreement), (ii) in Xxxxxx'x possession, or (iii) independently
known through a party other thank the Company, which party has no duty of
confidentiality and otherwise has the right to disclose same; and
(b) as it relates to Xxxxxx, "Confidential Contacts" will include
any person, firm or entity with whom/which Xxxxxx has contact or done business,
except any Confidential Contact from whom/which the Company can evidence it has
previously obtained Investment Financing or Trade Financing or with whom/which
it has otherwise done business, as the case may be, prior to the date Xxxxxx
makes such Confidential Contact available to the Company.
C. Except as specifically agreed to in writing between the parties, the
Company agrees it will not, directly or indirectly without first having obtained
Xxxxxx' written consent: (a) negotiate or enter into, or attempt to negotiate or
enter into, any agreement, covenant or understanding, written or oral, with any
Confidential Contacts in regard to Investment Financing, Trade Financing or
Business Arrangements, nor (b) advise others to utilize Confidential Contacts
for investment or trade finance or business arrangements, nor (c) deal directly
or interfere with, circumvent, frustrate or otherwise impede in any manner the
relationship of Xxxxxx with any Confidential Contacts.
D. The recipient of any Confidential Information and Confidential Contacts,
as the case may be:
(a) will take all necessary or appropriate action to (i) protect the
Confidential Information or the Confidential Contacts, as the case may be, which
standard of protection will be no less stringent than it takes to protect its
own proprietary and confidential information, and (ii) prevent its employees,
agents and/or representatives from acting in a manner inconsistent with the
terms of this Agreement; and
(b) may disclose same to its employees, agents and/or
representatives having a need for access thereto by virtue of his/its employment
or engagement by recipient, and who/which have been instructed as to, and have
agreed in writing to be bound by, the terms and conditions of this Agreement or
other agreement no less stringent than herein set forth prior to the disclosure
of the Confidential Information or Confidential Contacts, as the case may be.
9. Equitable Relief. Each party hereto agrees that any violation of this
Agreement by one party will result in irreparable injury to the other party,
because the Confidential Information, as it concerns the Company, and the
Confidential Contacts, as it concerns Xxxxxx, and the fruits thereof are
valuable in ways not susceptible to full and accurate valuation or have an
adequate remedy at law in the event the other party breaches the provisions of
this Agreement. Accordingly, the Company and Xxxxxx, as the case may be, will be
entitled to injunctive relief or other equitable remedy (without the necessity
of posting a bond) to prevent, curtail or enforce any such breach, threatened or
actual, or the performance of this Agreement. The foregoing will be in addition,
and without prejudice, to such other rights as the Company and Xxxxxx may have
law or in equity. The parties each acknowledge and agree that the covenants
contained herein are necessary for the protection of the other party's
legitimate business interest, and are reasonable in scope.
10. Indemnification. The Company and Xxxxxx will indemnify and hold each other
and their respective directors, employees, agents and controlling persons,
harmless from and against any and all losses, claims, damages, liabilities and
expenses, joint or several, including all reasonable fees and expenses of
counsel, whether or not resulting in any liability relating to or arising from
any acts taken by Xxxxxx and the Company, as the case may be, for the other
pursuant to this Agreement; provided, however, that neither the Company no
Xxxxxx will not be responsible for any losses, claims, damages, liabilities or
expenses relating to or arising from the other's gross negligence or intentional
wrongdoing. Nothing in this Agreement will be interpreted so as to create an
agency between the Company and Xxxxxx, nor will Xxxxxx or the Company act in any
manner so as to bind the other vis-a-vis third parties without first having
obtained the other party's written consent.
12 Termination.
A. Either party may terminate this Agreement upon five (5) days prior
written notice to the other party.
B. As of the date that termination of this Agreement becomes effective:
(a) Xxxxxx will forthwith cease to perform its duties hereunder;
(b) the Company will pay, or complete the payment of, each Success
Fee and issue warrants due or to become due and owing to Xxxxxx for it services
rendered prior to termination of this Agreement to, and the permissible use of
Confidential Contacts by the Company prior to and following termination of this
Agreement, together with any outstanding invoices for approved expenses; and
(c) Notwithstanding anything to the contrary contained herein, the
provisions of this Agreement relating to the payment of fees, warrants,
expenses, confidentiality, and their enforcement, indemnification and evidence
of transactions will survive termination of this Agreement.
13. Evidence of Transactions. The Company will provide Xxxxxx with copies of all
documents relating to any potential or completed transaction relating to this
Agreement forthwith upon its receipt or creation, and will keep Xxxxxx appraised
of all communications and financial information relating to such transaction.
16. Arbitration.
A. Any controversy or dispute arising out of or in connection with this
Agreement, or the breach thereof ("Dispute"), will be finally settled by
arbitration conducted in accordance with the Commercial Arbitration Rules of the
American Arbitration Association ("AAA") in effect at that time. Any such
arbitration will take place in the City of New York, New York before one (1)
arbitrator; however, if the parties hereto disagree as to such appointment, the
arbitration will be before three (3) arbitrators, one of whom to be designated
by the Company, one by Xxxxxx and the third by the two arbitrators so
designated. All of the arbitrators so designated will be practicing attorneys in
the State of New York, but none need be designated from any list or panel
published by the AAA or any other arbitration association. The decision by the
arbitrators will state the reasons for the award, and will be binding and
conclusive upon the parties, their successors and assigns, all of whom will
comply with such decision in good faith as if it were a final decision of a
court. Each party hereby submits itself to the jurisdiction of the appropriate
courts in the City of New York, New York for the entry of judgment with respect
to the decision of the arbitrators hereunder. Notwithstanding the foregoing,
judgment upon the award may be entered in any court having jurisdiction thereof.
B. The arbitrators will have the power to (i) order the production of
documents under the New York Rules of Civil Procedures by one party for
inspection and reproduction by the other party, (ii) in addition to damages and
other remedies available at law, grant preliminary and/or permanent injunctive
relief, and (iii) order specific performance and/or other equitable relief.
C. Notwithstanding anything to be contrary contained in this Agreement, a
party may seek equitable relief in court until such time as the arbitrator(s)
have been appointed as set forth above.
17. Costs.
A. In the event of a Dispute leading to arbitration or a court proceeding
as set forth hereinabove, the losing party will reimburse the prevailing party
its "Costs" (as hereinafter defined). As used herein, the term "Costs" will
include reasonable attorneys' fees and costs of arbitration or court recovery of
a money award and other relief (including, but not limited to, settlement
negotiations), and all costs of preparing for and pursuing claims or defenses or
both, as the case may be, including, but not limited to, gathering and compiling
evidence, witness fees and travel and related costs, document reproduction, as
well as costs incurred in determining the reasonableness of attorneys' fees and
executing the award or the settlement agreement, as the case may be. The
arbitrators will, in the first instance, include Costs of the arbitration in the
award, and the arbitrator or the courts, as the case may be, will adjudge any
other Costs on the basis of the Dispute as a whole.
B. If the arbitrators or the court determines that: (i) neither party
prevailed, each party will bear it's own Costs; or (ii) if a party only
partially prevailed, such partially prevailing party will be awarded a pro-rata
portion of its Costs.
18. Notice. Any notice or other communication required or authorized to be given
by either party to the other hereunder will be deemed given by either party to
the other hereunder will be deemed given when received in writing, either
personally or by registered mail, telex, telegraph, cable or telefax (postage or
other charges prepaid), addressed as first above written or to such other
address as a party has given notice in like manner. Any notice give to Xxxxxx
will also be given to Xxxxxxx Xxxxxx, Esq., Xxxxxxxx & Xxxx, LLP, Financial
Centre, 000 Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000-0000, and any notice given
to the Company will also be given to ___________________________________________
-----------------------------------------------------------------------.
19. Entire Agreement. This Agreement contains the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof, and merges and supercedes all prior discussions and writings with
respect hereto. No modifications or alterations of this Agreement or waiver of
any of its provisions will be effective unless made in writing, and signed by
each party hereto.
20. Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York (without giving effect to
principles of conflicts of laws.)
21. Cooperation. Each party hereto agrees to execute all documents and take such
actions as are appropriate or may be reasonably requested by the other party so
as to effectuate the terms and discharge the responsibilities of such party
under this Agreement.
23. Miscellaneous. This Agreement may be executed in counterparts. No
representations relating to the subject matter of this Agreement have been made
or relied upon by any party that is not set forth herein. This Agreement may not
be assigned by either party without the prior written consent of the other
party. Notwithstanding the foregoing, Xxxxxx may assign this Agreement to a
person, firm or entity controlling, controlled by or under common control with
Xxxxxx. The invalidity or uneforceability of any particular provision of this
Agreement will not affect the other provisions, and this Agreement will be
construed in all respects as if such invalid or unenforceable provision were
omitted.
NOW, THEREFORE, the parties hereto have executed this Agreement as of the date
first above written.
SURGICAL SAFETY PRODUCTS, INC.
By: /s/ XXXXX XXXXX
--------------------------------
Xxxxx Xxxxx,
President & CEO
THE XXXXXX GROUP, LLC
By: /S/XXXXX XXXXXX
------------------------------
Xxxxx Xxxxxx
