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EXHIBIT 10.101
FINANCIAL ADVISORY AND CONSULTING AGREEMENT
This agreement ("Agreement") is made and entered into this 1st day of
January, 2000, between Electronic Medical Distribution, Inc., a Delaware
corporation (the "Company") and X.X.
Xxxxx Securities, Inc. (the "Consultant").
In consideration of and for the mutual promises and covenants contained
herein, and for other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties hereto agree as follows:
1. Purpose. The Company hereby retains the Consultant on a
non-exclusive basis during the term specified to render consulting advice to the
Company as the Company may reasonably request to financial and similar matters,
upon the terms and conditions as set forth herein.
2. Term and Compensation. This Agreement shall be effective
commencing on the date first written above (the "Engagement Period"). The
Company agrees to award to Consultant as compensation 30,000 shares of Company
common stock.
3. Duties of Consultant. During the term of this Agreement, the
Consultant will provide the Company with such regular and customary
non-exclusive consulting advice as is reasonably requested by the Company,
provided that the Consultant shall not be required to undertake duties not
reasonable within the scope of the consulting advisory services contemplated by
this Agreement. In performance of these duties, the Consultant shall provide the
Company with the benefits of its best judgment and efforts. It is understood and
acknowledged by the parties that the value of the Consultant's advice is not
measurable in any quantitative manner, and that the Consultant shall not be
obligated to spend any specific amount of time doing so. The Consultant's duties
may at the direction of the Company include, but not necessarily be limited to
on a non-exclusive basis:
A. Providing sponsorship and exposure in connection with the
dissemination of corporate information regarding the Company
to the investment community at large.
B. Assisting in the Company's financial public relations,
including discussions between the Company and the financial
community.
C. Advice regarding the financial structure of the Company and
its divisions or any programs and projects, as such issues
relate to the public market for the Company's equity
securities.
D. Rendering advice with respect to any acquisition program of
the Company, as such program relates to the public market for
the Company's equity securities.
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E. Rendering advice regarding the public market for the Company's
securities and the timing and structure of any future public
offering of the Company's equity securities.
It is expressly understood that no actual or express authority on
behalf of the Company is granted by the Company hereunder to the Consultant.
4. Relationships with others. The Company acknowledges that the
Consultant or its affiliates is in the business of providing, among other
things, financial services and consulting advice (of all types contemplated by
this Agreement) to others. Nothing herein contained shall be construed to limit
or restrict the Consultant in conducting such business with respect to others,
or in rendering such advice to others. In connection with the rendering of
services hereunder, Consultant has been or will be furnished with confidential
information concerning the Company including, but not limited to, financial
statements and information, cost and expense data, production data, trade
secrets, marketing and customer data, and such other information not generally
obtained from public or published information or trade sources. Such information
shall be deemed "Confidential Material" and, except as specifically provided
herein, shall not be disclosed by Consultant or its employees or agents without
prior written consent of the Company. In the event Consultant is required by
applicable law or legal process to disclose any of the Confidential Material, it
is agreed that Consultant will deliver to the Company immediate notice of such
requirement prior to disclosure of same to permit the Company to seek an
appropriate protective order and/or waive compliance of this provision. If. in
the absence of a protective order or receipt of written waiver, Consultant is
nonetheless, in the reasonable written opinion of Consultant's counsel,
compelled to disclose any Confidential Material, Consultant may do so without
liability hereunder provided that notice of such prospective disclosure is
delivered to the Company at least five (5) days prior to actual disclosure.
Following the termination of this Agreement, Consultant shall deliver to the
Company all Confidential Material. Neither party hereto will issue any public
announcement concerning this Agreement without the approval of the other party,
provided however that nothing shall prevent the Company from fulfilling its
obligations to disclose the contents of this Agreement with the U.S. Securities
& Exchange Commission (the "SEC").
5. Consultant's Liability. The Consultant agrees to defend,
indemnify, and hold the Company, its officers, directors, employees, advisors,
attorneys and agents harmless from and shall indemnify the foregoing persons and
entities against any and all costs, expenses and liability (including reasonable
attorney's fees paid in connection with the investigations and/or the defense of
the such entities and persons) which may in any way result from a breach of any
representation, warranty or covenant made by Consultant or from any services
rendered by the Consultant pursuant to or in any connection with this Agreement.
6. Expenses. The Company, upon receipt of appropriate supporting
documentation, shall reimburse the Consultant for any and all reasonable and
actual out-of-pocket expenses
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incurred in connection with services provided to the Company, subject in each
case to prior written approval of the Company.
7. Limitation Upon the Use of Advice and Services.
(a) No person or entity, other than the Company or any of its
directors or officers shall be entitled to make use of or rely
upon the advice of the Consultant to be given hereunder.
(b) It is clearly understood that the Consultant, for services
rendered under this Agreement, makes no commitment whatsoever
as to recommend or advise its clients to purchase the
securities of the Company. Research reports or corporate
finance reports that may be prepared by the Consultant will,
when and if prepared, be done solely on the merits or judgment
of analysis of the Consultant or any senior finance personnel
of the Consultant.
(c) Use of the Consultant's name in annual reports or any other
report of the Company or releases by the Company must have the
prior approval of the Consultant unless the Company is
required by law to include Consultant's name in such annual
reports, other report or release of the Company, in which
event Consultant will be furnished with copies of such annual
reports or other reports or releases using Consultant's name
in advance of publication by the Company.
8. Severability. Every provision of this Agreement is intended to
be severable. If any term or provision hereof is deemed unlawful or invalid for
any reason whatsoever, such unlawfulness or invalidity shall not affect the
validity of this Agreement. At the sole discretion of the Company, this
Agreement may be terminated with a thirty (30) day notice.
9. Miscellaneous.
(a) Any notice of other communication between the parties hereto
shall be sufficiently given if sent by certified or registered
mail, postage prepaid, or faxed and confirmed if to the
Company, addressed to it at Electronic Medical Distribution,
Inc., Attention: Xxxxxxx X. Xxxxx, 0000 Xxxxxxxxx Xxxxxxx,
Xxxxxxxx, Xxxxxxx 00000 or if to the Consultant, addressed to
it at X.X. Xxxxx Securities, Inc., Attention: Xxxxx Xxxxxx,
Atlanta Financial Center, East Tower 0000 Xxxxxxxxx Xxxx,
Xxxxx 000, Xxxxxxx, Xxxxxxx 00000. Such notice or other
communication shall be deemed to be given on the date of
receipt.
(b) If the Consultant shall cease to do business, the provisions
hereof relating to duties of the Consultant and all
compensation to be paid by the Company as it applies to the
Consultant shall thereupon terminate and cease to be in
effect.
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(c) This Agreement embodies the entire agreement and understanding
between the Company and the Consultant and supersedes any and
all negotiations, prior discussions and preliminary and prior
agreements and understandings related to the central subject
matter hereof.
(d) This Agreement has been duly authorized, executed and
delivered by and on behalf of the Company and the Consultant.
(e) The validity, interpretation and construction of this
Agreement will be governed by the laws of the State of Georgia
applicable to contract entered into and performed entirely
with said state without regard to the principles of conflict
of laws. Any dispute or controversy between the parties
arising in connection with this Agreement shall be resolved by
arbitration before a three-member panel of the American
Arbitration Association in accordance with the commercial
arbitration rules of said forum and the Federal Arbitration
Act 9 U.S.C. I et seq., with the resulting award being final
and conclusive. Said arbitrators shall be empowered to award
all forms of relief and damages claimed, including but not
limited to, attorney's fees, expenses of litigation and
arbitration, exemplary damages, and prejudgment interest. The
parties further agree that any arbitration action between them
shall be heard in Atlanta, Georgia. Notwithstanding anything
contained herein to the contrary, nothing contained herein
shall prevent either party from initiating a civil action for
temporary or permanent injunctive and other equitable relief
against the other for breach of this Agreement. The parties
expressly consent to the jurisdiction and venue of the
Superior Court of Xxxxxx County, Georgia, and the United
States District Court for the Northern District of Georgia,
Atlanta Division for the adjudication of any civil action
asserted pursuant to this Paragraph.
(f) There is no relationship or partnership, agency, employment,
franchise, or joint venture between the parties. Neither party
has the authority to bind the other or incur any obligation on
its behalf.
(g) This Agreement and the rights hereunder may not be assigned by
either party (except by operation of law or merger) and shall
be binding upon and inure to the benefit of the parties and
their respective successors, assigns and legal
representatives.
(h) Consultant is not a party to any proceeding or action which
would prevent it from performing services pursuant to this
Agreement.
(i) Sections 4 and 5 shall survive the expiration or termination
of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date hereof.
ELECTRONIC MEDICAL DISTRIBUTION, INC.
By:
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Name: Xxxxxxx X. Xxxxx
Title: CEO
X.X. XXXXX SECURITIES, INC.
By:
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Name:
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Title:
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