EXHIBIT 10.1
AGREEMENT, dated April 24, 1998 between Oak Tree Medical Systems, Inc. and all
its Subsidiaries, and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
This letter sets forth the terms and conditions upon which ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, his
successors and/or assigns (including and limited to any partnership, joint
venture, corporation or other entity of which he is or may be associated with)
(hereinafter referred to as the "Consultant") will act as an advisor to Oak Tree
Medical Systems, Inc. and/or all of its Subsidiaries (hereinafter referred to as
"OAK" or the "Company") in an effort to:
A. Transfer by way of sale or otherwise one or more of OAK's present
facilities to any entity or individual, (hereinafter referred to as
"PURCHASER:) that ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ enters into negotiations with on
behalf of Oak Tree and which results in a sale or other comparable
transaction. It is agreed that any individual or entity which ▇▇▇▇▇▇▇▇
introduces to Oak Tree or which he enters into negotiations with or on
behalf of Oak Tree shall be deemed to be Kedersha's sole contact
entitling him to all compensation as noted herein. This provision shall
apply to all individuals and entities which may or may not have
previously contacted Oak Tree or any of its officers, directors or
representatives regarding any transaction relating to but not limited
to a sale or purchase of any of Oak Tree's facilities. In all cases,
Oak Tree must pre-approve potential ▇▇▇▇▇▇▇▇ contacts.
I. SCOPE OF ENGAGEMENT. The Consultant will act as advisor and consultant
to the Company and, in such capacity, will advise the Company with respect to
structuring and/or financing a sale of any of Oak Tree's facilities and such
other matters within Kedersha's areas of expertise.
II. RESPONSIBILITY AND SERVICE PROVIDED. With respect to the scope of
assignment and at all times subject to Paragraph 8 hereof, the Consultant will:
a. Familiarize itself with the business, operations, management,
financial condition, and future prospects of the Company and new
business acquisitions and/facility sales opportunities;
b. Evaluate potential acquisitions and various capital structures
that address the Company's sale of one or more of their
facilities;
c. Determine potential sources of capital, investment terms and
related strategy issues as may be possible to consummate a
transaction on behalf of Oak;
d. Meet and communicate with any purchaser, their advisor, or other
member of a potential purchaser as is necessary to perform within
the scope and guidelines of this Agreement
III. COMPENSATION TO THE CONSULTANT. As compensation for the Consultant's
services hereunder, the Consultant shall be paid if any purchase,
transfer of interest or control, or other comparable business
transaction takes place between Oak & an individual or entity as
described within this agreement. The Consultant's compensation shall
become due and payable immediately at closing. If cash is part of the
closing payment, Oak may first allow closing funds to clear its bank
before paying consultant. Consultant shall be paid the day such funds
clear Oak's bank. If Oak agrees and accepts a transaction where no cash
is received as part of the transaction, Consultant must still paid at
closing. If Oak agrees to a sale or comparable conclusion resulting in
either a sale or comparable transaction between Oak & an individual or
entity as described within this agreement, ▇▇▇▇▇▇▇▇ shall be paid at
closing. Compensation to the Consultant for services shall be as
follows:
A. IN THE EVENT PURCHASER ACQUIRES (OR IS ACQUIRED) ONE OR MORE OAK
FACILITIES OR OAK TREE ACQUIRES ONE OR MORE OF PURCHASER'S FACILITIES:
1. A payment of 10%* of the cumulative value of the total sales
price or comparable valuation of a comparable transaction.
Payment shall be paid in full at or before the closing.
▇▇▇▇▇▇▇▇ shall not be paid until Oak Tree's funds received
have been deposited and have cleared, or beneficial change of
control of the subject OAK facility(ies) to PURCHASER or a new
entity or individual that is introduced to OAK by ▇▇▇▇▇▇▇▇ and
also,
* ▇▇▇▇▇▇▇▇ agrees to accept Oak Tree stock as payment of Oak Tree's option.
Share price agreed is $2.00.
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2. It is agreed between the parties that time is of the essence
regarding the provisions of this subparagraph. If ▇▇▇▇▇▇▇▇
does not receive his cash payment and authorized expense
reimbursement at closing. ▇▇▇▇▇▇▇▇ shall not be paid until Oak
Tree's funds received have been deposited and have cleared, or
beneficial change of control of the subject OAK facility(ies)
to PURCHASER or a new entity or individual that is introduced
to OAK by ▇▇▇▇▇▇▇▇, he shall be entitled to a $5,000 cash late
penalty and thereafter $1,000 per day for each day he does not
receive the cash payment (including any outstanding expenses)
and penalty payment. All forms of payments must be received
simultaneously or the daily penalty will continue to accrue
until such time as all payments are received
IV. TERM OF ENGAGEMENT. The engagement of the Consultant pursuant to the
terms of this Letter Agreement shall be effective commencing on the day hereof
and shall continue until July 31st, 1998; provided, however, that the Company
may terminate this Agreement at any time, for any reason, by giving 45 days
prior written notice of such termination to the Consultant.
a. Notwithstanding the expiration or termination of this Agreement, the
Consultant shall receive all compensation due hereunder should any
agreement be entered into between OAK and an individual or entity as
described within this agreement within eighteen (18) months of the
expiration or termination of this Agreement, regardless of whether it
is asserted that the efforts of the Consultant were a material
contribution to the formation of the agreement.
V. CONFIDENTIALITY. Each of the parties agrees to keep any information
with respect to each other and this Agreement confidential and not to make use
thereof except as may be required by applicable law or judicial process. Each
party will not be identified or referred to in any public release or
communication prepared by either party or any of their affiliates or associates
without the other party's prior written consent.
VI. COMPANY'S OBLIGATIONS. The Company will continuously and timely apprize
the Consultant of any and all material matters relevant to the Company's
business as relates to Purchaser and OAK. The Company recognizes, agrees and
confirms that Consultant (i) will be using and relying on information available
from the Company and generally recognized public sources (the "information"),
without having independently verified the same, and; (ii) does not assume
responsibility for the accuracy of completeness of the information. The Company
will, in addition to any other duties of indemnification set forth in this
Letter Agreement, indemnify and hold Consultant harmless for any claim suit or
judgment arising out of Consultant's use of any information concerning the
Company furnished by the Company to the Consultant or which the Company provided
to any public source.
VII. LIMITATION OF LIABILITY AND INDEMNIFICATION. In performing its services
under this Agreement, neither Consultant nor any officer, director, employee,
shareholder, attorney, or agent of the Consultant will be liable to the Company
or its creditors for errors or judgment or for any other acts, except for acts
of gross negligence by the Consultant. Notwithstanding anything contained in
this Agreement, in the event that Consultant incurs any liability or obligations
in connection with the performance of its services under this Agreement, the
Company shall indemnify the Consultant for all of such liabilities, obligations,
expenses, or costs arising therefrom, including reasonable legal fees incurred
by Consultant, except for (i) actions of the Consultant which have not been
authorized by the Company and (ii) acts of gross negligence by the Consultant.
VIII. RELATIONSHIP OF THE PARTIES. Nothing in this Agreement shall be
construed to place the Consultant and the Company in the relationship of
partners or joint venturers. Neither the Consultant nor the Company shall
represent itself as the agent or legal representative of the other for any
purpose whatsoever. The Consultant, in performing its service hereunder, shall
at all times be an independent contractor.
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IX. MISCELLANEOUS. Notwithstanding anything to the contrary contained
herein, the provisions concerning confidentiality, indemnification and
contribution, and the Company's obligations to pay fees and reimburse expenses,
contained herein shall survive any expiration or termination of this Agreement.
This Agreement may not be amended or modified except in writing signed by both
parties and shall be governed by, and construed in accordance with, the laws of
the State of New York without reference to principles of conflicts of law
thereof.
If the foregoing conforms to your understanding, please sign, and date and
return to us the enclosed copy of this letter.
IN WITNESS WHEREOF, the parties have executed this agreement the date first
above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
ATTEST:
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
OAK TREE MEDICAL SYSTEMS, INC.
▇▇▇▇▇ ▇▇▇▇▇▇
ATTEST:
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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President and Board Member
Board of Directors
ATTEST:
/s/ ▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇
Board Member
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