Exhibit 10.18
▇.▇. ▇▇▇▇▇▇ & CO., INC.
1895 Mt. Hope Avenue
Rochester, New York 14620
____________, 1996
Life Critical Care Corporation
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
You have agreed that ▇.▇. ▇▇▇▇▇▇ & Co., Inc. ("▇.▇. ▇▇▇▇▇▇") may act as
a non-exclusive finder or financial consultant for you in various transactions
in which Life Critical Care Corporation (the "Company") may be involved, such as
mergers, acquisitions and consolidations, for a period of twenty-four (24)
months from the date of this Agreement (the "Period").
1. ▇.▇. ▇▇▇▇▇▇' Fee.
(a) If, during the Period, ▇.▇. ▇▇▇▇▇▇ brings to the Company
an opportunity for a proposed merger, consolidation or acquisition of
assets involving the Company as one of the parties thereto, or an
acquisition of all or substantially all of the securities of the
Company or of another entity (including an acquisition of assets or
securities that is paid for in part or in full by the issuance of
shares of the Company's Common Stock or other securities), then upon
the consummation of any such transaction (but only if such consummation
occurs within thirty-six (36) months from the date of this Agreement),
the Company will pay to ▇.▇. ▇▇▇▇▇▇ as a fee the amount provided for in
Paragraph 1(c) hereof; provided, however, that ▇.▇. ▇▇▇▇▇▇ shall be
deemed to have brought an opportunity to the Company for purposes of
this Paragraph 1(a) only if the opportunity is at least briefly
specifically described in a writing (which need not identify the other
parties) signed by ▇.▇. ▇▇▇▇▇▇ and received (with receipt acknowledged
in writing by the Company) prior to any negotiations between
representatives of the Company and representatives of the other party
or parties to such transaction, and such writing signed by ▇.▇. ▇▇▇▇▇▇
refers to the Company's obligations under this Paragraph 1(a).
(b) If, during the Period, an opportunity for a proposed
transaction of the type described in Paragraph 1(a) hereof is brought
to the Company by someone other than ▇.▇. ▇▇▇▇▇▇, and if the Company in
writing retains ▇.▇. ▇▇▇▇▇▇ for consultation or other services in
connection therewith, then upon the consummation of that transaction,
the Company will pay ▇.▇. ▇▇▇▇▇▇ as a fee the amount provided for in
Paragraph 1(c) hereof or such fee as is otherwise agreed to by the
Company and ▇.▇. ▇▇▇▇▇▇.
(c) The amount to be paid by the Company to ▇.▇. ▇▇▇▇▇▇ in any
case described in Paragraphs 1(a) or 1(b) hereof shall be calculated
based on the value of the consideration paid to or received by the
Company (or its stockholders), as follows: five percent (5%) of the
first two million dollars and two percent (2.0%) of any consideration
above two million dollars. "Consideration" shall mean the total value
of all cash, securities, other property and any other consideration,
including, without limitation, any contingent, earned or other
consideration paid or payable, directly or indirectly, in connection
with a transaction and consideration shall be determined at the
closing. The value of any such securities (whether debt or equity) or
other property shall be determined as follows: (1) the value of
securities that are freely tradeable in an established public market
shall be the last closing market price of such securities prior to the
public announcement of the transaction; and (2) the value of the
securities which are not freely tradeable or which have no established
public market, or if the consideration consists of property other than
securities, the value of such securities or other property shall be the
fair-market value thereof as mutually agreed by the Company and ▇.▇.
▇▇▇▇▇▇. Consideration shall also be deemed to include any indebtedness,
including, without limitation, pension liabilities, guarantees and
other obligations assumed, directly or indirectly, in connection with,
or which survives the closing of, a transaction. If the consideration
to be paid is computed or payable in any foreign currency, the value of
such foreign currency shall, for the purposes hereof, be converted into
U.S. Dollars at the prevailing exchange rate on the dates on which such
consideration is payable.
2. Payment. The fee due to ▇.▇. ▇▇▇▇▇▇ hereunder shall be paid by the
Company in cash at the closing of the transaction, without regard to whether the
transaction involves payment in cash, stock or a combination of stock and cash,
or is made on an installment sales basis. By way of example, if the transaction
involves securities of the acquiring entity (whether securities of the Company,
if the Company is the acquiring party, or securities of another entity, if the
Company is the selling party) having a value of $5,000,000, the cash
consideration to be paid by the Company to ▇.▇. ▇▇▇▇▇▇ at closing shall be
$160,000.
3. Binding Obligation. The Company represents and warrants to
▇.▇. ▇▇▇▇▇▇ that ▇.▇. ▇▇▇▇▇▇' engagement hereunder has been duly authorized and
approved by the Board of Directors of the Company and that this letter agreement
has been duly executed and delivered by the Company and constitutes a legal,
valid and binding obligation of the Company.
4. In General. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed entirely within such State. This Agreement sets forth the
entire agreement and understanding between the undersigned with respect to its
subject matter and supersedes all prior discussions, agreements and
understandings of every kind and nature between them with respect thereto. This
Agreement shall inure to the benefit of, and be enforceable against, each of the
undersigned and their respective successors and assigns.
Life Critical Care Corporation
___________, 1996
Page 4
Please sign this letter at the place indicated below, whereupon it will
constitute our mutually binding agreement with respect to the matters contained
herein.
Yours very truly,
▇.▇. ▇▇▇▇▇▇ & CO., INC.
By:__________________________
Name:
Title:
ACCEPTED AND AGREED TO:
LIFE CRITICAL CARE CORPORATION
By:_______________________________________
Name:
Title: