Exhibit 10.1
X.X. XXXXXXXX & CO., INC.
FOUNDED 1960
BROKERS & DEALERS IN SECURITIES
UNDERWRITERS
XXXXXXX XXXXXX XXXXX
000 XXXXXXXXXX XXXX. . X.X. XXX 000 . XXXXXX XXXX, XX 00000-0000
000-000-0000 . 000-000-0000 . Fax 000-000-0000 . xxx.xxxxxxxxxx.xxx
July 9, 1997
Dr. Xxxxxx Xxxx
President
HEALTHPLEX, INC.
00 Xxxxxxx Xxxxxxxxx Xxxx.
Xxxxxxxxx, XX 00000
Dear Xx. Xxxx:
THIS AGREEMENT (the "AGREEMENT") is made as of July 9,
1997 between Healthplex Inc. ("HEALTHPLEX") and X.X. Xxxxxxxx &
Co., Inc. ("XXXXXXXX").
In consideration of the mutual covenants contained
herein and intending to be legally bound thereby, HEALTHPLEX and
XXXXXXXX hereby agree as follows:
1. XXXXXXXX will perform investment banking services for
HEALTHPLEX on the terms set forth below for a period of
five years from the date hereof. Such services will be
performed on a best efforts basis and will include,
without limitation, assistance to HEALTHPLEX in
mergers, acquisitions, and internal capital structuring
and the placement of new debt and equity issues of
HEALTHPLEX, all with the objective of accomplishing
HEALTHPLEX's business and financial goals. In each
instance, XXXXXXXX shall endeavor, subject to market
conditions, to assist HEALTHPLEX in identifying
corporate candidates for mergers and acquisitions and
sources of private and institutional funds; to provide
planning, structuring, strategic and other advisory
services to HEALTHPLEX; and to assist in negotiations
on behalf of HEALTHPLEX. In each instance, XXXXXXXX
will render such services as to which HEALTHPLEX and
XXXXXXXX mutually agree and XXXXXXXX will exert its
best efforts to accomplish the goals agreed to by
XXXXXXXX and HEALTHPLEX.
2. In connection with the performance of this AGREEMENT,
XXXXXXXX and HEALTHPLEX shall comply with all
applicable laws and regulations, including, without
limitation, those of the National Association of
Securities Dealers, Inc. and the Securities and
Exchange Commission.
3. In consideration of the services previously rendered
and to be rendered by XXXXXXXX hereunder, XXXXXXXX is
hereby granted Warrants to purchase, at the price
quoted on the date of the closing of HEALTHPLEX, Common
Stock on the effective date of this AGREEMENT, a total
of 175,000 shares of Common Stock of HEALTHPLEX, with
demand and piggy back registration rights as set forth
in paragraph 5 below. Such Warrants ("XXXXXXXX
Warrants") may be exercised at any time from July 6,
1998 to and including July 9, 2002. The XXXXXXXX
Warrants shall vest and become irrevocable as follows:
100,000 Warrants upon the signing of this AGREEMENT and
an additional 75,000 Warrants 9 months after the
signing of this AGREEMENT.
4. If HEALTHPLEX should, at any time, or from time to time
hereafter, effect a stock split, a reverse stock split,
or a recapitalization, the terms of the XXXXXXXX
Warrants shall be proportionately adjusted to prevent
the dilution or enlargement of the rights of the
holders.
5. During the period from July 9, 1997 to July 9, 2002,
the holders of at least 51% of: (i) the XXXXXXXX
Warrants not then exercised; and (ii) the shares
previously issued upon exercise of any of the XXXXXXXX
Warrants (hereinafter, collectively, the "XXXXXXXX
EQUITY",) may demand, on one occasion only, that
HEALTHPLEX, at HEALTHPLEX's expense, promptly file a
Registration Statement under the Securities Act of
1933, as amended ("ACT"), to permit a public offering
of the shares of Common Stock issued and issuable
pursuant to exercise of the XXXXXXXX Warrants (the
"XXXXXXXX SHARES"). Additionally, if HEALTHPLEX during
the period from July 9, 1997 to July 9, 2002, files a
Registration Statement covering the sale of any of
HEALTHPLEX's common stock, then HEALTHPLEX, on each
such occasion, at the request of the holders of at
least 51% of the shares and warrants constituting the
XXXXXXXX EQUITY, shall include in any such Registration
Statement, at HEALTHPLEX's expense, the XXXXXXXX
SHARES, provided that, if the sale of securities by
HEALTHPLEX is being made through an underwriter and the
underwriter objects to inclusion of the XXXXXXXX SHARES
in the Registration Statement, the XXXXXXXX SHARES
shall not be so included in the Registration Statement
or in any registration statement filed within 90 days
after the effective date of the underwritten
Registration Statement. This paragraph shall not apply
to any registration statement filed on Form X-0, X-0 or
other corporate forms.
6. The obligation of HEALTHPLEX to register the XXXXXXXX
SHARES, including the shares issuable upon exercise of
the XXXXXXXX Warrants, pursuant to the demand or the
piggy back registration rights set forth in paragraph
5, above, shall be without regard to whether the
XXXXXXXX Warrants have been or will be exercised.
7. HEALTHPLEX agrees that, for a period of three (3) years
from the date of this AGREEMENT, HEALTHPLEX will not
utilize the registration exemption set forth in
Regulation S under the ACT, without the consent of
XXXXXXXX, which consent will not be unreasonably
withheld.
8. This AGREEMENT constitutes the entire Warrant Agreement
between the parties and when a copy hereof is presented
to HEALTHPLEX's transfer agent, together with a
certified check in the proper amount and a request that
all or part of the XXXXXXXX Warrant be exercised, the
certificates for the appropriate number of shares of
Common Stock shall be promptly issued.
9. Upon the execution of this AGREEMENT, HEALTHPLEX shall
include in their next annual report and filings the
highlights and terms of this investment banking
AGREEMENT.
10. Upon the signing of this AGREEMENT, HEALTHPLEX shall
pay XXXXXXXX $15,000.00 as a non-accountable and non-
refundable expense allowance for due diligence and
general compliance review. XXXXXXXX shall be entitled
to additional compensation, to be negotiated between
XXXXXXXX and HEALTHPLEX, arising out of any
transactions that are proposed or executed by XXXXXXXX
and consummated by HEALTHPLEX, or are executed by
XXXXXXXX at HEALTHPLEX's request, during the term of
this AGREEMENT to the extent that such compensation is
normal and ordinary for such transactions. In
addition, XXXXXXXX shall be reimbursed by HEALTHPLEX
for any reasonable out-of-pocket expenses that XXXXXXXX
may incur in connection with rendering any service to
or on behalf of XXXXXXXX that is approved, in writing,
in advance by HEALTHPLEX's Chief Executive Officer.
10A. Either party may terminate this agreement upon 60 days
written notice to the other party provided that in the
event of a termination of the services of XXXXXXXX,
XXXXXXXX shall be entitled to retain warrants as
provided for in Paragraph 3 and the rights provided for
in Paragraph 5. And provided further that XXXXXXXX
shall not be entitled to terminate prior to July 1,
1999.
11. HEALTHPLEX agrees to indemnify and hold XXXXXXXX and
its directors, officers and employees harmless from and
against any and all losses, claims, damages,
liabilities, costs or expenses arising out of any
action or cause of action brought against XXXXXXXX in
connection with its rendering services under this
AGREEMENT except for any losses, claims, damages,
liabilities, costs or expenses resulting from any
violation by XXXXXXXX of applicable laws and
regulations including, without limitation, those of the
National Association of Securities Dealers, Inc. and
the Securities and Exchange Commission or any state
securities commission or from any act of XXXXXXXX
involving willful misconduct and except that HEALTHPLEX
shall not be liable for any amount paid in settlement
of any claim that is settled without its prior written
consent.
12. XXXXXXXX agrees to indemnify and hold HEALTHPLEX and
its directors, officers and employees harmless from and
against any and all losses claims, damages,
liabilities, costs or expenses, including attorney's
fees and expenses, resulting from any breach of this
Agreement by XXXXXXXX or any violation by XXXXXXXX of
applicable laws and regulations including, without
limitation, those of the National Association of
Securities Dealers, Inc., the Securities and Exchange
Commission any state securities commission or from any
act of XXXXXXXX involving willful misconduct.
13. Within 90 days of the date of this AGREEMENT, a
representative of XXXXXXXX will visit the corporate
headquarters of HEALTHPLEX. HEALTHPLEX will submit to
XXXXXXXX a current business plan setting forth how
HEALTHPLEX plans to proceed over the next two (2)
years.
14. Nothing contained in this AGREEMENT shall be construed
to constitute XXXXXXXX as a partner, employee, or agent
of HEALTHPLEX; nor shall either party have any
authority to bind the other in any respect, it being
intended that XXXXXXXX is, and shall remain an
independent contractor.
15. This AGREEMENT may not be assigned by either party
hereto, shall be interpreted in accordance with the
laws of the State of New Jersey, and shall be binding
upon the successors of the parties. Either party may
terminate this investment banking contract at any time,
however, legally vested Warrants will remain with
XXXXXXXX.
16. If any paragraph, sentence, clause or phrase of this
AGREEMENT is for any reason declared to be illegal,
invalid, unconstitutional, void or unenforceable, all
other paragraphs, sentences, clauses or phrases hereof
not so held shall be and remain in full force and
effect.
17. None of the terms of this AGREEMENT shall be deemed to
be waived or modified except by an express agreement in
writing signed by the party against whom enforcement of
such waiver or modification is sought. The failure of
either party at any time to require performance by the
other party of any provision hereof shall, in no way,
affect the full right to require such performance at
any time thereafter. Nor shall the waiver by either
party of a breach of any provision hereof be taken or
held to be a waiver of any succeeding breach of such
provision or as a waiver of the provision itself.
18. Any dispute, claim or controversy arising out of or
relating to this AGREEMENT, or the breach thereof,
shall be settled by arbitration in Jersey City, New
Jersey, in accordance with the Commercial Arbitration
Rules of the American Arbitration Association. The
parties hereto agree that they will abide by and
perform any award rendered by the arbitrator(s) and
that judgement upon any such award may be entered in
any Court, state or federal, having jurisdiction over
the party against whom the judgement is being entered.
Any arbitration demand, summons, complaint, other
process, notice of motion, or other application to an
arbitration panel, Court or Judge, and any arbitration
award or judgement may be served upon any party hereto
by registered or certified mail, or by personal
service, provided a reasonable time for appearance or
answer is allowed.
19. For purposes of compliance with laws pertaining to
potential inside information being distributed
unauthorized to anyone, all communications regarding
HEALTHPLEX's confidential information should only be
directed to Xxxxxx X. Xxxxxxxx, Chairman, Xxxxxxx
Xxxxxxxxx, President, or Xxxxx Xxxxxxxxxxx, Senior Vice
President, Compliance. If information is being faxed,
our confidential compliance fax number is (201) 459-
9534 for communication use.
IN WITNESS WHEREOF, the parties hereto have executed this
AGREEMENT as of the day and year set forth above.
X.X. XXXXXXXX & CO., INC. HEALTHPLEX, INC.
By: /s/ Xxxxxxx Xxxxxxxxx By: /s/ Xxxxxx Xxxx
-------------------------- ----------------------
Xxxxxxx Xxxxxxxxx Dr. Xxxxxx Xxxx
President President
