1
EXHIBIT 10.13
HORNBLOWER & WEEKS, INC.
INVESTMENT BANKING AGREEMENT
AGREEMENT, made this 1st day of March, 2001 by and between Metropolitan
Health Networks, Inc., having its principal place of business at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, hereinafter the "Company" and Hornblower &
Weeks Financial Corporation, having its principal place of business at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, hereinafter the ("Consultant").
WHEREAS, the Company desires to retain the Consultant for consulting
services in connection with the Company's business affairs on a non-exclusive
basis, and the Consultant is willing to undertake to provide such services as
hereinafter fully set forth:
W I T N E S S E T H
NOW, THEREFORE, the parties agree as follows:
1. TERM: The thirty-six (36) months from the date hereof, plus an
automatic renewal of twelve (12) months unless written notice not to continue
service is received by the Consultant not less than thirty (30) days before the
expiration of thirty-six (36) months from the date hereof. This contract is
binding on both parties.
2. NATURE OF SERVICES: The Company hereby engages Consultant to
exclusively render the services hereinafter described during the term hereof on
a non-exclusive basis (it being understood and agreed that Consultant is free to
render the same or similar services to any other entity selected by it).
(a) attend meetings of the Company's Board of Directors
or Executive Committee(s) when so requested by the
Company.
(b) consult with the Company concerning on-going
strategic corporate planning and long term,
investment policies, including any revision of the
Company's business plan.
(c) render advice with respect to leasing/and or other
financing arrangements, not including any parties
which the Company has initiated dealings with prior
to the signing of this agreement.
(d) assist in negotiation of contracts with suppliers and
major customers when so required by the Company.
(e) consult with and advise the Company with regards to
potential mergers and acquisitions, whether the
Company be the acquiring Company or the target of
acquisition.
1
2
(f) review press releases whenever appropriate to be made
available to the press in general, customers,
suppliers and selected NASD broker/dealers, financial
institutions, and the Company's shareholders.
(g) provide coverage in the manner of four reports per
annum which will coincide with the Company's Q's and
K's and will be distributed to a list provided to the
consultant by the Company in addition to the
Consultant's own list.
3. RESPONSIBILITIES OF THE COMPANY: The Company shall provide the
Consultant with all financial and business information about the Company as
requested by the Consultant in a timely manner. In addition, executive officers
of the Company shall make themselves available for personal consultations with
the Consultant and/or third party designees, subject to reasonable prior notice,
pursuant to the request of the Consultant.
4. COMPENSATION: For corporate financial advisory services, due
diligence and other services which will be provided to the Company from time to
time over the course of our engagement, we mutually agree that the Consultant
will be entitled to compensation and other consideration mutually understood,
but understood, but not limited to the following:
(a) For business development, strategic planning and other
consulting work to be accomplished not related to any public financing, the
Company will pay a monthly fee of $2,000 (the "Monthly Fee") beginning upon
April 1, 2001, and shall continue for twelve months. Payable on the 15th of each
month.
(b) It is also agreed that concurrent with the signing of this
Agreement, the Company will have issued and immediately affect to have
registered 137,500 shares of the Company's Common stock to the Consultant.
(c) If at any time during the term of this Agreement and for a
period of one year following the termination of this Agreement, the Company
merges with, acquires assets to any other property, or obtains any financing
from any of the entities, affiliations or persons of the Consultant's, its
employees or former employees, agents, representatives, advisors or the
Consultant introduces any of these to the Company, not previously introduced to
the Company, the Company will pay a finder's fee in both cash and stock. The
finder's fee shall be divided into two equal parts of cash and stock, the
product of which will equal to 5% of the total gross proceedings of such
transaction. If required by applicable law, or at the election of the
Consultant, the finder's fee will be deemed to have tamed by and be paid to a
placement agent selected exclusively by the Consultant's.
(d) The Company hereby irrevocably agrees not to circumvent,
avoid, bypass or obviate directly or indirectly, the intent of this Agreement,
to avoid payment of
2
3
fees, in any transaction with any corporation, partnership or individual,
introduced by the Consultant to the Company in connection with any project, any
loans or collateral or fundings, or any other transaction involving any
products, transfers or services, or addition, renewal, extension, rollover,
amendment, re-negotiation, new contracts, parallel contracts, or third party
assignments thereof.
5. EXPENSES: The Company shall also reimburse the Consultant for actual
out- of-pocket expenses including, but not limited to, facsimile, postage,
printing, photocopying, and entertainment, incurred by the Consultant without
the prior consent of the Company and in connection with the performance by the
Consultant of its duties hereunder, the Company shall also reimburse the
Consultant for the costs of all travel and related expenses incurred by the
Consultant in connection with the performance of its services hereunder,
provided that all such costs and expenses have been authorized, in advance, by
the Company. Expenses shall be due and payable when billed and after they have
been incurred. The Consultant shall not expend more than S 100 dollars on any
expense item without the prior written approval of the Company.
6. INDEMNIFICATION: The Parties agree to indemnify and hold harmless
each other and their affiliates, and their respective officers, directors,
employees, agents and controlling persons ( The Parties and each such other
persons and entities being an "Indemnified Party" for purposes of this section)
from and against any and all losses, claims, damages, and liabilities, jointly
or severally, to which such Indemnified Party may become subject under any
applicable federal or state law, or otherwise related to or arising out of any
transaction contemplated by this Agreement and the performance by the parties of
the Consultant of the services contemplated by this Agreement, and shall
reimburse each indemnified party for all reasonable expenses (including
reasonable counsel fees and expenses) as they am incurred in connection with the
investigation of, preparation for or defense of any pending or threatened claim
or any action or proceeding arising therefrom, whether or not such Indemnified
Party is a party thereto provided that the other party shall not be liable for
any of the foregoing to the extent they arise from the gross negligence or
willful misconduct of the Indemnified Party and further provide that such
Indemnified Party agrees to refund such reimbursed expenses if and to the extent
it is finally judicially determined that such Indemnified Party is not entitled
to indemnification. In the event that the foregoing indemnity is unavailable or
insufficient to hold any Indemnified Party harmless, then the other party shall
contribute to amounts paid or payable by such Indemnified Party in respect of
such losses, claims, damages and liabilities in such proportions as
approximately reflects the relative benefits received by, in fault of, the other
parry and such Indemnified Party in connection with the matters as to which such
losses, claims, damages and liabilities relate and other equitable
considerations, provided however that nothing in this sentence shall be
construed as altering or. limiting in any way the effect of the provisions
contained in the immediately preceding sentence.
7. COMPLETE AGREEMENT: This Agreement contains the entire Agreement
between the parties with respect to the contents hereof and supersedes all prior
3
4
agreements and understandings between the parties with respect to such matters,
Whether written or oral. Neither this agreement, nor any term or provision
hereof may be changed, waived, discharged or amended in any manner other than by
any instrument in writing, signed by the party against which the enforcement of
the change, waiver, discharge or amendment is sought.
8. COUNTERPARTS: This Agreement may be executed in two or more
counterparts, each of which shall be an original but all of which shall
constitute but one Agreement.
9. SURVIVAL: Any termination of this Agreement shall not, however,
affect the on- going provisions of this Agreement which shall survive such
termination in accordance with their terms.
10. DISCLOSURE: Any financial advice rendered by the Consultant
pursuant to this Agreement may not be disclosed publicly in any manner without
the prior written approval of the Consultant. All non-public information given
to the Consultant by the Company will be treated by the Consultant as
confidential information, and the Consultant agrees not to make use of such
information other than in connection with its performance of this Agreement,
provided, however, that any such information may be disclosed if required by any
court or governmental or regulatory authority, board or agency. "Non-public
information" shall not include any information which (i) is or becomes generally
available to the public other than as a result of a disclosure by the
Consultant; (H) was available to the Consultant prior to its disclosure to the
Consultant by the Company, provided that such information is not known by the
Consultant to be subject to another confidentiality agreement with another
party; or (iii) becomes available to the Consultant on a non- confidential basis
from a source other than the Company, provided that such source is not bound by
a confidentiality agreement with the Company.
11. NOTICE: Any or all notices, designations, consents, offers,
acceptance or other communication provided for herein shall be given in writing
and delivered in person or by registered or certified mail, return receipt
requested, directed to the address shown below unless notice of a change of
address is furnished:
If to Consultant:
Hornblower & Weeks Financial Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
12. SEVERABILITY: Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law. If any provision of this agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule, such invalidity,
illegality or unenforceability will not effect
4
5
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
13. MISCELLANEOUS:
(a) Neither the Consultant nor its affiliates, or their
respective officers, directors, employees, agents or controlling persons shall
be liable, responsible or accountable in damages or otherwise to the Company or
its affiliates, or their respective officers, directors, employees, agents or
controlling persons for any act or omission performed or omitted by the
Consultant with the respect to the services provided by it pursuant or otherwise
relating to or arising out of this Agreement.
(b) All final decisions with respect to consultation, advice
and services rendered by the Consultant to the Company shall rest exclusively
with the Company, and Consultant shall not have any right or authority to bind
the Company to any obligation or commitment.
(c) The parties hereby agree to submit any controversy or
claim arising out of or relating to this Agreement to final and binding
arbitration administered by the American Arbitration Association ("AAA") under
its Commercial Arbitration Rules, and further agree that immediately after the
filing of a claim as provided herein they shall in good faith attempt mediation
in accordance with the AAA Commercial Mediation Rules; provid4 however, that the
proposed mediation shall not interfere with or in any way impede the progress of
the arbitration. The parties also agree that (i) the AAA Optional Rules for
Emergency Measures of Protection shall apply to any proceedings initiated
hereunder; (ii) the arbitrator shall be authorized and empowered to grant any
remedy or relief, which the arbitrator deems just and equitable in nature,
including, but not limited to, specific performance, injunction, declaratory
judgment and other forms of provisional relief in addition to a monetary award;
(iii) the arbitrator may make other decisions including interim, interlocutory
or partial findings, orders and awards to the full extent provided in Rule 45 of
the Commercial Arbitration Rules; and (iv) the arbitrator shall be empowered and
authorized to award attorneys' fees to the prevailing party in accordance with
Rule 45(d).
(d) This Agreement and the legal relations among the parties
hereto shall be governed by and construed in accordance with the laws of the
State of New York without regard to the conflicts of laws principles thereof or
the actual domiciles of the parties. Any arbitration or mediation inherited by
the parties as provided herein shall be filed and maintained exclusively with
the American Arbitration Association's offices located in New York City and the
parties further agree that the provisions of paragraph 9, above, may be enforced
by any court of competent jurisdiction, and the party seeking enforcement shall
be entitled to an award of all costs, fees and expenses, including attorneys'
fees, to be paid by the party against whom enforcement is ordered.
5
6
(e) If the Consultant shall incur any expense (whether paid or
not) in performing any acts which the Company is required to perform, or in
instituting any action or proceeding based upon a default by the Company, or in
defending, or in asserting a counterclaim, in any action or proceeding brought
by the Company, any and all expenses to the Consultant, including attorney's
fees, costs and disbursements, shall be paid by the Company to the Consultant,
on demand; furthermore, the expenses incurred in connection with any action or
proceeding instituted by the Consultant to enforce the provisions hereof shall
also be recoverable by the Consultant.
Agreed and Accepted on March 1, 2001 by and between:
Hornblower & Weeks Financial Corp. Metropolitan Health Networks, Inc.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------- ----------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
6