<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 16, 1996
REGISTRATION NO. 333-3612
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
POST-EFFECTIVE AMENDMENT NO. 1
ON
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
AMERICAN BIOMED, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 76-0136574
(State or other juris- (I.R.S. Employer
diction of incorporation Identification
or organization) Number)
10077 GROGANS MILL ROAD #100
THE WOODLANDS, TEXAS 77380
(713) 367-3895
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
---------------
AMERICAN BIOMED, INC. STOCK GRANT TO CONSULTANTS
(FULL TITLE OF THE PLAN)
---------------
STEVEN B. RASH
PRESIDENT AND CHIEF EXECUTIVE OFFICER
AMERICAN BIOMED, INC.
10077 GROGANS MILL ROAD #100
THE WOODLANDS, TEXAS 77380
(713) 367-3895
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
---------------
Approximate date of commencement of proposed sale to the public: As
soon as practicable after this Registration Statement becomes effective.
================================================================================
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by the Company with the
Commission are incorporated herein by reference:
(i) The Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1995.
(ii) The description of the Company's common stock in the
Company's Registration Statement on Form 8-A under the Securities Exchange Act
of 1934, as filed with the Commission on September 15, 1993.
In addition to the foregoing, all documents subsequently filed
by the Company pursuant to sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, prior to the filing of a post-effective
amendment indicating that all securities offered hereunder have been sold or
which deregisters all securities remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be part hereof
from the date of filing of such documents. Any statement contained in a
document incorporated by reference in this Registration Statement shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any subsequently filed
document that is also incorporated by reference herein modifies or supersedes
such statement. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Section 145 of the General Corporation Law of the State of
Delaware permits indemnification of directors, officers and employees of a
corporation under certain conditions and subject to certain limitations.
Article IX of the Company's Certificate of Incorporation contains provisions
for the indemnification of directors, officers and employees within the
limitations permitted by Section 145.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
10.1 -- Consulting Agreement between Samuel S. Ahn, M.D. and
American BioMed, Inc. dated December 1, 1995
II-2
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10.2 -- Consulting Agreement between Thomas E. Waite &
Associates, Inc. and American BioMed, Inc. dated
March 1, 1996
5 -- Opinion of Porter & Hedges, L.L.P.
23.1 -- Consent of Coopers & Lybrand L.L.P.
23.2 -- Consent of Porter & Hedges, L.L.P.
(included in Exhibit 5)
Item 9. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the
registration statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in the registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if
the registration statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the
registrant pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to Section 15(d) of
the Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities
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Act of 1933 and is, therefore, unenforceable. In the event of a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer, or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer, or controlling person of the
registrant in connection with the securities being registered, the registrant
will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act of 1933 and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of The Woodlands, State of Texas, on May 20th,
1996.
AMERICAN BIOMED, INC.
By: /s/ Steven B. Rash
-----------------------------------
Steven B. Rash, President
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
SIGNATURE TITLE
--------- -----
David P. Summers+ Chairman of the
- -------------------------------------------- Board
David P. Summers, Ph.D.
Steven B. Rash+ President, Chief Executive
- -------------------------------------------- Officer and Director
Steven B. Rash
Director
- --------------------------------------------
Lawrence M. Hoffman
Director
- --------------------------------------------
Herbert L. Kalman
Claudio Guazzoni Director
- --------------------------------------------
Claudio Guazzoni
+By: /s/ Steven B. Rash
---------------------------------------
Steven B. Rash,
individually and as Attorney-in-Fact
II-5
<PAGE> 6
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit Description Page No.
- ------- ----------- --------
<S> <C> <C>
5 Opinion of Porter & Hedges, L.L.P.
10.1 Consulting Agreement between Samuel S. Ahn, M.D.
dated December 1, 1995
10.2 Consulting Agreement between Thomas E. Waite &
Associates and American BioMed, Inc. dated March 1, 1996
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Porter & Hedges, L.L.P.
(included in Exhibit 5)
</TABLE>
<PAGE> 1
EXHIBIT 5
[PORTER & HEDGES, L.L.P. LETTERHEAD]
April 15, 1996
American BioMed, Inc.
2408 D-5 Timberloch Place
The Woodlands, Texas 77380
Ladies and Gentlemen:
We have acted as counsel to American BioMed, Inc., a Delaware
corporation (the "Company"), in connection with the preparation and filing of a
Registration Statement on Form S-8 (the "Registration Statement") with the
Securities and Exchange Commission pursuant to the Securities Act of 1933, as
amended. The Registration Statement relates to an aggregate of 600,000 shares
(the "Shares") of the Company's common stock, par value $.001 per share. The
Shares are to be offered upon the terms and subject to the conditions set forth
in the American BioMed, Inc. Stock Grant to Consultants (the "Plan").
We have examined such corporate records, documents, instruments and
certificates of the Company and have received such representations from the
officers and directors of the Company and have reviewed such questions of law
as we have deemed necessary, relevant or appropriate to enable us to render the
opinion expressed herein. In such examination, we have assumed the genuineness
of all signatures and the authenticity of all documents, instruments, records
and certificates submitted to us as originals.
Based on such examination and review and on representations made to us
by the officers and directors of the Company, we are of the opinion that the
Shares have been duly and validly authorized and will, on issuance and delivery
as contemplated in the Plan, be validly issued, fully paid and nonassessable
shares of the Company's capital stock.
This firm consents to the filing of this opinion as an exhibit to the
Registration Statement.
Very Truly Yours,
/s/ PORTER & HEDGES, L.L.P.
PORTER & HEDGES, L.L.P.
<PAGE> 1
EXHIBIT 10.1
CONSULTING AGREEMENT
This CONSULTING AGREEMENT (this "Agreement") is made and
entered into as of December 1, 1995, by and between AMERICAN BIOMED, INC., a
Delaware corporation ("Company") and SAMUEL S. AHN, M.D. ("Consultant").
RECITALS
A. Consultant is a well-respected vascular surgeon with
an established practice in the field.
B. Company is an emerging manufacturer of medical
devices and desires to obtain Consultant's services, principally with respect
to the clinical application of the Company's OmniCath(R) Peripheral Atherectomy
Catheter and other products for vascular surgery.
NOW, THEREFORE, Company and Consultant agree as follows:
1. Services. Company hereby retains Consultant and
Consultant hereby accepts the appointment as Consultant for Company upon the
terms and conditions set forth in this Agreement.
2. Term of Agreement. This Agreement shall remain in
effect for a period of one (1) year from December 1, 1995 to November 30, 1996,
and shall thereafter be automatically renewed for consecutive periods of one
(1) year unless either party notifies the other, at least ninety (90) days
prior to the expiration of the then-current term, of its election not to renew
the Agreement.
3. Services Provided by Consultant. Consultant is
engaged to counsel and consult with Company's personnel on projects and other
matters within the scope of Consultant's expertise relating to (1) the clinical
application of Company's Products, (2) the selection, liaison and designation
of other consultants and scientific advisors to Company, (3) the production and
review of scientific reports, and (4) communications with regulatory, academic
and professional bodies.
a. Availability. Consultant shall be available
for the performance of services hereunder on a part-time basis, which will not
exceed ten (10) hours per week. The time commitment herein shall include, but
not be limited to, all travel time and all time during which Consultant is
required, in the performance of services
<PAGE> 2
hereunder, to be absent from the location of his place of residence regardless
of whether services are actually being performed during the entire period of
such absence.
b. Performance of Services. Consultant's
services shall be performed at such reasonable times and places as the parties
may mutually agree upon, including rendition of consulting services via
telephone and facsimile.
4. Compensation of Consultant. Consultant shall be paid
by Company the sum of one hundred fifty thousand dollars ($150,000), of which
twelve thousand five hundred dollars ($12,500) shall be due and payable within
thirty (30) days of the execution of this Agreement, and the balance payable in
equal monthly payments through the term hereof. If there is a reduction of
annual revenues received by Consultant from his medical practice of greater
than sixteen and two-thirds percent (16 2/3%) below revenues received between
October 1, 1994 and October 1, 1995, the monthly compensation paid to
Consultant by Company shall be increased to compensate Consultant for the
shortfall* up to a maximum of $50,000, above which the parties agree to
negotiate additional compensation or contract and the amount as so increased
will continue in effect for the remaining term of this Agreement.
5. Royalties in Connection with Consulting Activities.
If the services provided by Consultant with respect to the clinical application
of Company's products lead, directly or indirectly, to the development of new
products or the modification or improvement of existing Company-owned products,
Company shall pay Consultant the following royalties in addition to
Consultant's compensation under Section 4, and Company shall fully comply with
these terms for twenty (20) years or the life of any patent (whichever is
longer):
a. Enhancement or Modification of Existing
Products. If Consultant's services lead, directly or indirectly, to the
modification or improvement of an existing Company-owned product, Company shall
own such modification or improvement and Company shall compensate Consultant at
a rate of five percent (5%) of all gross revenues derived from sales of that
modified product. If a United States patent issues with respect to any such
modified product, Company shall also issue Consultant fifty thousand (50,000)
shares of Company stock. Consultant shall communicate the suggested
modification or improvement to Company in writing, and Company shall reserve
the right to accept such changes.
- ---------------
* Up to a maximum of $50,000, above which the parties agree to negotiate
additional compensation or contract.
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b. New Products Suggested by Use of Existing
Products. If Consultant's services lead, directly or indirectly, to the
creation of a new product which was suggested by or based upon an existing
Company-owned product, Company shall own such new product and Company shall
compensate Consultant at a rate of five percent (5%) of all gross revenues
derived from sales of that new product should the Company accept such
suggestion. If a United States patent issues with respect to any such product,
Company shall also issue Consultant one hundred thousand (100,000) shares of
Company stock.
c. New Products Independently Created by
Consultant. If consultant creates or contributes to the creation of a new
product not directly derived from any product owned by Company, Consultant
shall be deemed the owner of such product. However, Company shall have the
right of first refusal with regard to any such new product which is directly
competitive with a then-existing product of Company, which right may be subject
to a separate agreement. Without limiting the generality of the foregoing,
Company specifically acknowledges that Consultant presently has five (5) patent
applications pending before the United States Patent and Trademark Office, and
that consultant is the sole owner of all inventions related to such patent
applications. Consultant shall provide the serial number and a brief
description of the product for each of the five products for which patent
application is currently pending pursuant to a separate confidential agreement
between the parties. Any relationship between Consultant and Company concerning
any product, invention or other matter owned by Consultant is not subject to
this Agreement, but may be the subject of a separate agreement.
d. Accounting. If any compensation is payable to
Consultant under this Section 5, Company shall pay such compensation no less
frequently than once each calendar quarter and shall simultaneously deliver to
Consultant a written statement of gross revenues derived by Company, during the
period covered by such statement, from the sale of all products described in
this Section 5. Each such statement shall be certified as true and correct by
Company's independent certified public accountant, and shall be in form and
substance reasonably acceptable to Consultant. Consultant shall have the right,
directly or through representatives and upon reasonable advance notice to
Company, to review Company's books and records to verify the accuracy of such
payments and statements. If any such review demonstrates that Company has
failed to pay the
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amount due to Consultant hereunder, Company shall pay, promptly upon demand by
Consultant, the amount of underpayment, interest at the rate of prime plus two
percent (2%) from the original due date until the date of payment, and all
costs and expenses including without limitation accounting and attorneys' fees,
incurred by Consultant in conducting such review.
e. Definition of "Improvement". For purposes of
this Section 5, "improvement" shall mean a development in a product that
improves the function of or produces added value for a product in the
commercial marketplace.
6. Compensation in Recognition of Certain Milestones.
Upon the occurrence of certain milestones described below, Company shall
compensate Consultant accordingly:
a. FDA Approval for OmniCath(R) Product. If
Company through the efforts of Consultant during the term of this Agreement or
a reasonable period thereafter receives approval from the Food and Drug
Administration ("FDA") for general marketing of the OmniCath(R) Peripheral
Atherectomy Catheter, Company shall pay Consultant on the first anniversary of
such approval an additional twenty five thousand dollars ($25,000). Company
shall immediately, at the time such approval is received, issue Consultant
fifty thousand (50,000) shares of Company common stock which shall be in
addition to any stock then held by Consultant.
b. FDA Approval for Other Products. If Company
through the efforts of Consultant during the term of this Agreement or a
reasonable period thereafter receives approval from the FDA for general
marketing of any other Company product, Company shall pay Consultant on the
first anniversary of such approval an additional amount to be agreed upon by
Company and Consultant on a case-by-case basis. Company shall immediately, at
the time such approval is received, issue Consultant fifty thousand (50,000)
shares of Company common stock which shall be in addition to any stock then
held by Consultant.
c. Increase in Company Stock Price. If Company's
stock price increases during the term of this Agreement to ten dollars ($10) or
more per share for thirty (30) or more days in any calendar year, Company shall
pay Consultant within ninety (90) days an additional one hundred thousand
dollars ($100,000) and shall issue Consultant fifty
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<PAGE> 5
thousand (50,000) shares of Company common stock, in addition to any stock then
held by Consultant. If Company's stock price increases during the term of this
Agreement to twenty dollars ($20) or more per share for thirty (30) or more
days in any calendar year, Company shall pay Consultant an additional two
hundred thousand dollars ($200,000) and shall issue Consultant one hundred
thousand (100,000) shares of Company common stock, in addition to any stock
held by Consultant.
d. Adjustments. During the term of this
Agreement and for three (3) years after the termination hereof, in the event of
any share dividend or share split, recapitalization (including, without
limitation, the payment of an extraordinary dividend), merger, consolidation,
combination, spin-off, distribution of assets to shareholders, exchange of
shares, or other similar corporate change, appropriate adjustments shall be
made by Company in the number of common shares and share prices provided for in
this Section 6 to reflect such change in order to protect Consultant from any
dilutive effect otherwise resulting therefrom.
7. Reimbursement of Consultant's Expenses. All expenses
reasonably incurred by Consultant in connection with the performance of his
duties under this Agreement, including without limitation overhead expenses in
the amount of ten percent (10%) of total compensation, and all reasonable
travel and out-of-town living expenses, shall either be prepaid by Company or
shall be reimbursed to Consultant within thirty (30) days following the
submission of expense statements by Consultant. Company shall also reimburse
Consultant for all legal fees and expenses incurred in connection with the
negotiation and preparation of this Agreement and any other agreement between
Company and Consultant.
8. Other Work by Consultant. During the term of this
Agreement, Consultant may render consulting services to others and/or conduct
research or development of products in any and all areas; provided that
Consultant may not render services to any company whose products are directly
competitive with Company's products unless Consultant so notifies Company prior
to commencing such services. Without limiting the foregoing, such research or
development services shall not be deemed to violate any confidentiality
agreements between Consultant and Company which may exist at the time.
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9. Indemnification and Insurance. Company shall indemnify
and hold Consultant harmless from and against any and all liability, claims,
damages and losses arising out of any services performed by Consultant hereunder
or arising out of any claim for damage due to a product developed, manufactured,
distributed or sold in whole or in part by Company, provided that Consultant
shall notify Company of any such liability, claim or loss promptly after he
becomes aware of same. Company shall obtain and maintain such policies of
insurance as shall reasonably be required to provide protection against such
liabilities, claims and losses and shall provide Consultant with current
certificates of insurance naming Consultant as an additional insured for all
such policies of insurance.
10.1 Termination With or Without Cause. Either party
hereto may at any time during the term hereof terminate this Agreement with or
without cause by giving thirty (30) days' prior written notice of termination
to the other party.
10.2 Termination of Agreement by Company Without Cause. In
the event that Company terminates this Agreement without cause, Company shall
provide Consultant severance pay in the amount of six (6) months' compensation
otherwise payable under Section 4 hereof. "Without cause" shall be defined as
an event other than:
(1) The willful breach by Consultant of
his duties under this Agreement, unless waived by Company;
(2) The habitual neglect by Consultant
of his duties under this Agreement, unless waived by Company.
10.3 Survival of Agreements. Termination for any reason
shall not modify or reduce the provisions in Sections 5, 6 and 7 of this
Agreement, nor modify the Stock Option Agreements, Royalty Agreements not a
part of this Agreement, or the Finder's Fee Agreement between Company and
Consultant.
11. Miscellaneous.
a. Relationship of Parties. Company and
Consultant are and intend to remain independent parties. Nothing contained in
this Agreement shall be deemed or construed to create the relationship of
principal and agent
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or of partnership or joint venture, and neither party shall hold itself out as
the agent, legal representative, partner, servant or employee of the other.
b. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given upon
the earliest to occur of: (i) when delivered personally; (ii) if sent by
facsimile transmission (fax or telecopy), upon electronic confirmation that
such facsimile has been transmitted; or (iii) forty-eight (48) hours after
being mailed, certified or registered mail, return receipt requested, postage
prepaid, to the addresses set forth below the signatures of the parties or to
such other addresses as either of the parties may designate from time to time
by written notice to the other party.
c. Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the State of
California.
d. Rights and Remedies Cumulative. All rights
and remedies of Company and of Consultant enumerated in this Agreement shall be
cumulative and, except as expressly provided otherwise in this Agreement, none
shall exclude any other rights or remedies allowed by law or in equity, and
each of said rights or remedies may be exercised and enforced concurrently.
e. Severability. If any provision of this
Agreement or the application of any provision hereof to any person or any
circumstance shall be determined to be invalid or unenforceable, then such
determination shall not affect any other provision of this Agreement or the
application of such provision to any other person or circumstance, all of which
other provisions shall remain in full force and effect, and it is the intention
of each party to this Agreement that if any provision of this Agreement is
susceptible of two or more constructions, one of which would render the
provision enforceable and the other or others of which would render the
provision unenforceable, then the provision shall have the meaning which
renders it enforceable.
f. Successors and Assignees. The provisions of
this Agreement shall inure to the benefit of and be binding upon the heirs,
personal representatives and successors of the parties hereto. Notwithstanding
the foregoing, neither party shall have the right to assign this
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Agreement to another without the prior written consent of the other party
hereto, which consent shall not be unreasonably withheld, except that no
consent of Company shall be required in the event of an assignment of this
Agreement by Consultant and a delegation of Consultant's duties hereunder to a
corporation or other entity owned by Consultant or a trust established for the
benefit of Consultant or members of Consultant's immediate family.
g. Controversy. In the event of any controversy,
claim or dispute between the parties hereto arising out of or relating to this
Agreement, such controversy, claim or dispute shall be resolved according to
the following procedure:
(i) Consultant and an executive
representative of Company will first communicate telephonically within five (5)
days after the controversy, claim or dispute first arises, and in such
telephonic communication the parties shall attempt in good faith to resolve
their differences.
(ii) If in the telephonic communication
the parties are unable to resolve their differences, then the parties shall
attempt to resolve such differences through mediation conducted in Los Angeles,
California, in accordance with the rules of the American Arbitration
Association.
(iii) If the procedures in (i) and (ii) do
not lead to the resolution of the parties' differences, any controversy, claim
or dispute may be tried only in the Superior Court of the State of California
for the County of Los Angeles or the Federal District Court for the Central
District of California, as either party may elect. Each of the parties hereby
agrees that service of process of such court may be made by personal delivery
or by mailing certified or registered mail, return receipt requested, to the
other party at the address provided for in the signature page hereof. Both
parties hereby submit to the jurisdiction of the court so selected, to the
exclusion of any other courts which may have had jurisdiction apart from this
Section 12(g), and agree that the prevailing party shall be entitled to recover
from the nonprevailing party reasonable expenses, including without limitation
reasonable attorneys' fees.
12. Entire Agreement. This Agreement constitutes the
entire Agreement between Company and Consultant in
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respect of the subject matter of this Agreement, and this Agreement supersedes
all prior and contemporaneous agreements between the parties hereto in
connection with the subject matter of this Agreement. No change, termination or
attempted waiver of any of the provisions of this Agreement shall be binding
upon any party hereto unless contained in a writing signed by the party to be
charged.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
AMERICAN BIOMED, INC. SAMUEL S. AHN, M.D.
By: /s/ STEVEN B. RASH /s/ SAMUEL S. AHN
------------------------ -----------------------------
Title: President and Chief
Executive Officer
Address: Address:
2408 D-5 Timberloch Place 100 UCLA Medical Plaza
- ---------------------------- -----------------------------
The Woodlands, TX 77380 Suite SLO
- ---------------------------- -----------------------------
Los Angeles, CA 90024
- ---------------------------- -----------------------------
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<PAGE> 1
EXHIBIT 10.2
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is entered into as of this
1st day of March, 1996, by and among Thomas E. Waite & Associates, Inc., a
Florida corporation ("Consultant") with corporate offices at 106 Ridge Road,
Lake Mary, Florida 32746 and American BioMed, Inc. ("AMB"), a corporation
organized and existing under the laws of Delaware with corporate offices at
Suite 100, 10077 Grogan's Mill Road, The Woodlands, Texas 77380.
WITNESSETH
WHEREAS, AMB desires to engage Consultant to perform certain services
including public relations services on its behalf and to advise AMB on certain
business opportunities; and
WHEREAS, Consultant has represented that it has the experience
expertise to perform those certain services which will help AMB in its
endeavors to become better known in the business and financial community and
seek further business opportunities;
NOW THEREFORE, in consideration of the premises and mutual covenants
set forth herein, the parties hereto agree as follows:
1. REPRESENTATIONS OF AMB. AMB represents and warrants that:
(a) AMB has the full power and authority to execute and deliver
this Agreement, and to perform all of its obligations herein,
and this Agreement has been duly authorized and approved by
AMB and is binding upon it in accordance with its terms.
(b) All news releases or other publicity about AMB will be
coordinated with the Consultant and will be issued in
accordance with the legal requirements of a public company.
(c) AMB shall approve or disapprove within 48 hours the issuance
of all press releases and any other material representations
about AMB suggested by Consultant.
(d) The common stock of AMB to be issued to Consultant as
compensation shall be properly authorized, issued and
registered under the Securities Act of 1933, on a Form S-8
registration statement or other appropriate form, so that the
same are freely traded under U.S. securities laws.
<PAGE> 2
2. REPRESENTATIONS OF CONSULTANT. Consultant represents and warrants
that:
(a) Consultant has the full power and authority to execute and
deliver this Agreement, and to perform all of its obligations
herein.
(b) Consultant shall limit its representations about AMB to facts
disclosed by AMB to Consultant.
3. SERVICES TO BE PERFORMED. Consultant agrees to provide the following
services on behalf of AMB from the date this Agreement is signed until
March 1, 1998:
(a) Consultant shall open channels of distribution for AMB's
products throughout the world;
(b) Consultant shall provide input on AMB's marketing and sales
plans and materials;
(c) Consultant shall review, advise and have input on AMB's
distribution agreements;
(d) Consultant shall provide advice and assistance to AMB with
regard to public relations, mergers, acquisitions and other
business opportunities;
(e) Consultant shall provide public relations services to AMB and
shall advise AMB regarding press releases and communications
with the investment community, including mutual funds, money
managers, investors and brokerage firms;
(f) Consultant shall help prepare and release all press releases
and public announcements in coordination with AMB and AMB's
legal counsel;
(g) Consultant shall coordinate press conferences with the general
media, newspapers, trade publications, magazines, financial
news letters, investment advisory reports, wire services such
as Dow Jones, Reuters and Bloomberg, and financial television
and radio programs: and
(h) Consultant shall act as AMB's spokesperson to the investment
community.
4. TERM OF THIS AGREEMENT. This Agreement shall be binding and in effect
from the date this Agreement is signed through March 1, 1998.
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5. COMPENSATION.
(a) Base Compensation. As compensation for Consultant's services, AMB
shall transfer to Consultant 500,000 shares of free-trading AMB common
stock. These shares shall be delivered to Consultant simultaneously
with the execution of this Agreement. On the date of this Agreement,
shares of AMB are quoted at $.50 bid on the electronic-bulletin board.
(b) Bonus Compensation. The Board of Directors of AMB shall, from time to
time, review the activities of Consultant with a view towards bonus
compensation which may be awarded such compensation may take the form
of cash, common stock or other property, and shall be commensurate
with the services rendered by Consultant on behalf of AMB and the
value thereby added to AMB and to its stockholders.
6. EXPENSES. AMB shall be responsible during the entire term of this
Agreement for all of its own expenses incurred in connection with this
Agreement. AMB shall reimburse Consultant for any and all out-of-pocket
expenses incurred by Consultant in the performance of this Agreement and
its activities for AMB. In furtherance thereof, simultaneously herewith,
AMB is transmitting an advance payment for such expenses to Consultant in
the amount of $5,000, it being the intention of the parties that AMB
shall, from time to time and no less than monthly, replenish such advance
so that at all times hereunder there is at least a $2,500 advance against
such disbursements.
7. NOTICES. All notices, requests, demands and other communications hereunder
shall be in writing and personally delivered, or sent by registered or
certified mail or receipted overnight courier service to the following
addresses:
If to AMB: American Bio-Med, Inc.
10077 Grogan's Mill Road, Suite 100
The Woodlands, Texas 77380
Attention: Steven B. Rash - President
If to Consultant: Thomas E. Waite & Associates, Inc.
106 Ridge Road
Lake Mary, Florida 32746
Provided, however, that either party hereto may, from time to time give to
the other party written notice, in the manner provided for herein, of some
other address to which communications to such party shall be sent, in
which event notices to such party shall be sent. Notice shall be deemed
effectively given hereunder when personally delivered or
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deposited in the United States mail, postage prepaid, registered or
certified, return receipt requested, or transmitted by overnight receipted
courier service as the case may be.
8. BINDING EFFECT, ASSIGNMENT. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective personal
representatives, heirs, spouses, beneficiaries, successors and permitted
assigns. Neither party to this Agreement may assign such party's rights or
obligations hereunder without the prior written consent of the other party.
9. COMPLETE ASSIGNMENT. This Agreement constitutes the complete understanding
between the parties with respect to the subject matter hereof. This
Agreement constitutes the entire agreement between the parties hereto with
respect to the matters covered herein and supersedes all prior or
contemporaneous agreements, negotiations, representations or discussions
with respect to such subject matter. This Agreement may not be amended or
modified except by a written instrument executed by the parties hereto.
10. GOVERNING LAW. This Agreement and performance hereunder shall be governed
by and construed in accordance with the laws of the State of Florida. In
the event of any legal or equitable action arising under this Agreement,
the parties hereto hereby agree that the courts of the State of Florida
shall have sole and exclusive jurisdiction and venue over any such action
and each party hereby consents to such jurisdiction.
11. FURTHER ACTIONS. Each party to this Agreement shall take such further
actions to execute, file, record, publish and deliver such additional
certificates, instruments, agreements and other documents as the other
party may from time to time, reasonably request in order to effectuate the
transfer contemplated herein, or otherwise to accomplish the purposes of
this Agreement.
12. WAIVER. No waiver of any breach of any term or condition of this Agreement
shall be deemed to be a waiver of any subsequent breach of any term or
condition of a like or different nature.
13. SEVERABILITY. If any provision of this Agreement shall be held invalid or
unenforceable, such validity or unenforceability shall not, if possible,
affect the validity or enforceability of any other provision of this
Agreement, and this Agreement shall, if possible, be construed and enforced
in all respects are if such invalid or unenforceable provision had not been
contained herein.
14. DRAFTSMANSHIP. The fact that one of the parties may have drafted or
structured any provision hereof shall not be considered in construing the
particular provision either in favor of, or against, such party.
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15. COUNTERPARTS. This Agreement may be executed simultaneously in several
counterparts, each of which shall be deemed an original, but all of which
shall only constitute one instrument. Facsimile signatures are acceptable.
IN WITNESS WHEREOF, each of the parties having agreed to the above
mentioned terms and conditions have hereunder set their hands and seals as of
this First day of March, 1996.
THOMAS E. WAITE & ASSOCIATES, INC.
By: /s/ THOMAS E. WAITE
------------------------------------------
Thomas E. Waite, Chief Executive Officer
AMERICAN BIO-MED, INC.
By: /s/ STEVEN B. RASH
------------------------------------------
Steven B. Rash, President and
Chief Executive Officer
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EXHIBIT 23.1
[COOPERS & LYBRAND L.L.P. LETTERHEAD]
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement on
Post-Effective Amendment No. 1 on Form S-8 (file No. 333-3612) of our report,
which includes an explanatory paragraph which refers to substantial doubt
regarding the Company's ability to continue as a going concern dated March 27,
1996, on our audits of the consolidated financial statements and the financial
statement schedule of American BioMed, Inc. and Subsidiaries as of December 31,
1994 and 1995, and for the years ended December 31, 1993, 1994 and 1995, and
for the period from inception, September 4, 1984, to December 31, 1995. We also
consent to the reference to our firm under the caption "Experts".
/s/ COOPERS & LYBRAND L.L.P.
COOPERS & LYBRAND L.L.P.
Houston, Texas
May 13, 1996
