Exhibit 1.2
FINANCIAL ADVISORY AND INVESTMENT BANKING AGREEMENT
This Agreement is made and entered into as of the day of , 1997 between
Network 1 Financial Securities, Inc. a New Jersey corporation ("Network 1"), and
Med-Emerg International, Inc., a corporation organized under the laws of the
Province of Ontario, Canada (the "Company").
In consideration of the mutual promises made herein and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Purpose: The Company hereby engages Network 1 for the term specified in
Paragraph 2 hereof to render advice to the Company as an investment banker
relating to financial and similar matters upon the terms and conditions set
forth herein.
2. Term: Except as otherwise specified in Paragraph 4 hereof, this
Agreement shall be effective from _________, 1997 to _________________, 1999.
3. Duties of Network 1: During the term of this Agreement, Network 1
shall, upon the request of the Company, provide the Company with corporate
finance and related financial advisory services, advice with respect to
potential acquisitions and other business transactions and advice with respect
to stockholder relations matters. All obligations of the Consultant contained
herein shall be subject to the Consultant's availability to perform such
services and the amount of notice received from the Company. The Consultant
shall devote such time and effort to the
performance of its duties hereunder as the Consultant shall determine is
reasonably necessary. The Consultant may look to such others for such factual
information, investment recommendations, economic advice and/or research, upon
which to base its advice to the Company hereunder, as it shall deem appropriate.
The Company recognizes that Network 1 now renders and may continue to render
financial and other advisory services to other companies which may or may not
have policies and conduct activities similar to those of the Company, and
acknowledges that Network 1 shall be free to render advice and to perform those
services for such other companies.
4. Compensation: In consideration for the services rendered by Network 1
to the Company pursuant to this Agreement (and in addition to the expenses
provided for in Paragraph 5 hereof), the Company shall pay Network 1 a
non-refundable fee of $120,000, payable in advance, upon the execution of this
Agreement. In addition, if any Transaction (as defined below) occurs during the
term of this Agreement or within twelve months thereafter, the Company shall pay
fees to Network 1 as follows:
Consideration Fee
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First $1,000,000 5% of First $1,000,000
Second $1,000,000 4% of Second $1,000,000
Third $1,000,000 3% of Third $1,000,000
Fourth $1,000,000 2% of Fourth $1,000,000
Consideration in excess of the 1% of Consideration in excess
fourth $1,000,0000 of the fourth $1,000,000
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For the purposes of this Agreement, a "Transaction" shall mean (i) any
transaction originated by Network 1, other than in the ordinary course of trade
or business of the Company, whereby, directly or indirectly, control of, or a
material interest in, the Company and its subsidiaries or the business or assets
of the Company and its subsidiaries, is transferred for Consideration, or (ii)
any transaction originated by Network 1 whereby the Company acquires any other
company, or the assets of any other company or an interest in any other company;
and "Consideration" shall mean the total market value on the day of the closing
of stock, cash, assets and all other property (real or personal) exchanged or
received, directly or indirectly by the Company or any of its security holders
in connection with any Transaction. Any co-broker retained by Network 1 shall be
paid by Network 1. All Transaction fees to be paid pursuant to this Agreement,
except as otherwise specified, are due and payable to Network 1 in cash at the
closing or closings of a Transaction. In the event that this Agreement shall not
be renewed or is terminated for any reason, notwithstanding any such non-renewal
or termination, Network 1 shall be entitled to the entire fee provided in this
Paragraph 4, for any Transaction for which the discussions were initiated during
the term of this Agreement and which is consummated within a period of twelve
months after non-renewal or termination of this Agreement. Nothing herein shall
impose any obligation on the part of the Company to enter into any Transaction.
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5. Expenses of Network 1: In addition to the fees payable hereunder and
regardless of whether any Transaction is proposed or consummated, the Company
shall reimburse Network 1 for the reasonable fees and disbursements of Network
1's counsel and Network 1's reasonable travel and out-of-pocket expenses
incurred in connection with the services performed by Network 1 pursuant to this
Agreement and at the request of the Company, including without limitation,
hotels, food and associated expenses and long-distance telephone calls.
6. Liability of Network 1:
(a) In furnishing the Company with advice and other services as
herein provided, neither Network 1 nor any officer, director or agent thereof
shall be liable to the Company or its creditors for errors of judgment or for
anything, except for the Consultant's intentional or willful misconduct in the
performance of its duties under this Agreement.
(b) It is further understood and agreed that Network 1 may rely upon
information furnished to it reasonably believed to be accurate and reliable and
that, except as herein provided, Network 1 shall not be accountable for any loss
suffered by the Company by reason of the Company's action or inaction on the
basis of any advice, recommendation or approval of Network 1, its partners,
employees or agents.
(c) The Company acknowledges that all opinions and advice (written
or oral) given by Network 1 to the Company in connection with Network 1's
engagement are intended solely for the
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benefit and use of the Company in considering the transaction to which they
relate, and the Company agrees that no person or entity other than the Company
shall be entitled to make use of or rely upon the advice of Network 1 to be
given hereunder, and no such opinion or advice shall be used for any other
purpose or reproduced, disseminated, quoted or referred to at any time, in any
manner or for any purpose, nor may the Company make any public references to
Network 1, or use Network 1's name in any annual reports or any other reports or
releases of the Company without Network 1's prior written consent.
(d) The Company acknowledges that Network 1 makes no commitment
whatsoever as to making a market in the Company's securities or to recommending
or advising its clients to purchase the Company's securities. Research reports
or corporate finance reports that may be prepared by Network 1 will, when and if
prepared, be done solely on the merits based upon an analysis performed by
Network 1 and its corporate finance personnel.
7. Company Information:
(a) The Company shall furnish to the Consultant all data, material
and other information relevant to the performance by the Consultant of its
obligations under this Agreement, or particular projects as to which the
Consultant is acting as advisor, which will permit the Consultant to know all
facts material to the advice to be rendered, and all material or information
reasonably requested by the Consultant. The Company acknowledges and agrees that
in performing its services under this
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engagement, Network 1 may rely upon the data, material and other information
supplied by the Company without independently verifying the accuracy,
completeness or veracity of same. In the event that the Company fails or refuses
to furnish any such data, material or information reasonably requested by the
Consultant, and thus prevents or impedes the Consultant's performance hereunder,
any inability of the Consultant to perform shall not be a breach of its
obligations hereunder.
(b) Except as contemplated by the terms hereof or as required by
applicable law, Network 1 shall keep confidential all non-public information
provided to it by the Company and shall not disclose such information to any
third party without the Company's prior written consent, other than to such of
its employees and advisors as Network 1 determines in its sole judgment need to
have access thereto. Notwithstanding the foregoing, the Consultant shall not be
required to maintain confidentiality with respect to information (i) which is or
becomes part of the public domain; (ii) of which it had independent knowledge
prior to disclosure; (iii) which comes into the possession of the Consultant or
its employees or agents in the normal and routine course of its own business
from and through independent non-confidential sources; or (iv) which is required
to be disclosed by the Consultant pursuant to legal process or in accordance
with governmental or regulatory requirements. If the Consultant is requested or
required (by oral questions, interrogatories, requests for information or
document subpoenas,
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civil investigative demands, or similar process) to disclose any confidential
information supplied to it by the Company, or the existence of other
negotiations in the course of its dealings with the Company or its
representatives, the Consultant shall, unless prohibited by law, promptly notify
the Company of such request(s) so that the Company may seek an appropriate
protective order.
8. Indemnification: The Company agrees to indemnify and hold harmless the
Consultant, its partners, employees, agents, representatives and controlling
persons (and the officers, directors, employees, agents, representatives and
controlling persons of each of them) from and against any and all losses,
claims, damages, liabilities, costs and expenses (and all actions, suits,
proceedings or claims in respect thereof) and any legal or other expenses in
giving testimony or furnishing documents in response to a subpoena or otherwise
(including, without limitation, the costs of investigating, preparing or
defending any such action, suit, proceeding or claim, whether or not in
connection with any action, suit, proceeding or claim in which the Consultant is
a party), as and when incurred, directly or indirectly, caused by, relating to,
based upon or arising out of the Consultant's service pursuant to this
Agreement. The Company further agrees that the Consultant shall incur no
liability to the Company or any other party on account of this Agreement or any
acts or omissions arising out of or related to the actions of the Consultant
relating to this Agreement or the performance or failure to perform any services
under this Agreement, except for the Consultant's intentional or
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willful misconduct. The obligations of the Company under the Section shall
survive the termination of this Agreement.
9. Independent Contractor: Network 1 shall perform its services hereunder
as an independent contractor and not as an employee of the Company or an
affiliate thereof. It is expressly understood and agreed to by the parties
hereto that Network 1 shall have no authority to act for, represent or bind the
Company or any affiliate thereof in any manner, except as may be agreed to
expressly by the Company in writing from time to time.
10. Miscellaneous:
(a) This Agreement between the Company and Network 1 constitutes the
entire agreement and understanding of the parties hereto and supersedes any and
all previous agreements and understandings, whether oral or written, between the
parties with respect to the matters set forth herein.
(b) Any notice or communication permitted or required hereunder
shall be in writing and shall be deemed sufficiently given if hand-delivered or
sent (i) postage prepaid by registered mail, return receipt requested, or (ii)
by facsimile, to the respective parties as set forth below, or to such other
address as either party may notify the other in writing:
If to the Company, to: Med-Emerg International, Inc.
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Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy No.:
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with a copy to: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇, Savage, Kaplowitz,
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Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to Network 1, to: Network 1 Financial
Securities, Inc.
One Financial Galleria
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇ ▇▇▇▇▇▇, Esq.
Snow ▇▇▇▇▇▇ ▇▇▇▇▇▇ P.C.
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
(c) This Agreement shall be binding upon and inure to the benefit of
each of the parties hereto and their respective successors, legal
representatives and assigns.
(d) This Agreement may be executed in any number of counterparts,
each of which together shall constitute one and the same original document.
(e) No provision of this Agreement may be amended, modified or
waived, except in a writing signed by all of the parties hereto.
(f) This Agreement shall be construed in accordance with and
governed by the laws of the State of New York, without giving effect to conflict
of law principles. The parties hereby agree that any dispute which may arise
between them arising out of or in connection with this Agreement shall be
adjudicated before a court located in New York City, and they hereby submit to
the
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exclusive jurisdiction of the courts of the State of New York located in New
York, New York and of the Federal District Court for the Southern District of
New York with respect to any action or legal proceeding commenced by any party,
and they irrevocably waive any objection they now or hereafter may have
respecting the venue of any such action or proceeding brought in such a court or
respecting the fact that such court is an inconvenient forum, relating to or
arising out of this Agreement, and consent to the service of process in any such
action or legal proceeding by means of registered or certified mail, return
receipt requested, in care of the address set forth in Section 10(b) hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
NETWORK 1 FINANCIAL
SECURITIES, INC.
By:________________________________
Name:
Title:
MED-EMERG INTERNATIONAL, INC.
By:________________________________
▇▇▇▇ ▇▇▇▇▇▇▇▇
President
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