SECURITIES AND EXCHANGE COMMISSION
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
MEDICAL INDUSTRIES OF AMERICA, INC.
(Exact name of registrant as specified in its charter)
FLORIDA 65-0158479
(State or other jurisdiction of (IRS Employer Number)
incorporation or organization)
1903 S. CONGRESS AVE
SUITE 400
BOYNTON BEACH, FL 33426
(Address of Principal Executive Offices)
AGREEMENTS WITH CONSULTANTS
(Full title of the Plan)
EDWIN F. RUSSO, ESQ.
C/O MEDICAL INDUSTRIES OF AMERICA, INC.
(561) 737-2227
(Telephone number, including area code, of agent for service)
----------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
========================================================================================================================
TITLE OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED FEE REGISTERED OFFERING PRICE PER SHARE (1) AGGREGATE OFFICE PRICE (1) REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
COMMON STOCK, 143,5000 $2.00 $287,000 $100.00
NO PAR VALUE SHARES
========================================================================================================================
</TABLE>
1) PURSUANT TO RULE 457, ESTIMATED SOLELY FOR THE PURPOSE OF CALCULATING THE
REGISTRATION FEE, AND COMPUTED IN ACCORDANCE WITH THE AVERAGE OF LAST SALE
PRICES OF THE COMMON STOCK FOR THE FIVE (5) TRADING DAYS PRIOR TO AND INCLUDING
JANUARY 30,1997 AS REPORTED BY NASDAQ.
<PAGE>
PART 1
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Pursuant to the note to Part 1 of the Form S-8, the information required
by Part 1 is not filed with the Securities and Exchange Commission (the
"Commission").
Page 2 of 5
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THIS DOCUMENT CONSTITUTES A PART OF A PROSPECTUS COVERING
SECURITIES THAT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
MEDICAL INDUSTRIES OF AMERICA, INC.
CONSULTING AGREEMENTS
The information set forth herein together with the documents annexed
hereto and made a part hereof and incorporated herein by reference relates to
the shares of common stock of Medical Industries of America, Inc. (the
"Company") to be issued to several Consultants, and a group of medical doctors
acting as consultants to pay for professional services rendered to the Company
by said Consultants. The Consulting Agreements are as follows:
(a) Consulting Agreement entered into January 27, 1997 with MCOA, Inc.
under which qualified medical doctors would be provided by MCOA to the Company's
patients in the Central Florida area. (100,200) shares.
(b) Consulting Agreement made as of January 17, 1997 with Jones, Foster,
Johnston & Stubbs under which they would provide, advice and analysis to the
Company in connection with business litigation and related legal matters.
(15,000 shares).
(c) Consulting Agreement made as of January 10, 1997 with Mirkin & Woolf,
P.A., attorneys under which they would provide advice and analysis to the
Company in connection with mergers and acquisitions. (20,000 shares).
(d) Consulting Agreement made as of December 20, 1996 with Strategica
Group for a period of three months to examine and evaluate proposed acquisitions
and the like. (7,000 shares)
(e) Consulting Agreement made us of January 28, 1997 with Robin Davison, a
technician with experience in the field of mobile cardiac catherization for a
period of thirty days. (1,300 shares).
The purpose of the agreements above referred to herein above was to
provide essential services to the Company to assist the Company in its expansion
plans.
The tax consequences to the Consultants and to the Company of the issuance
of these shares are as follows:
1. CONSULTANT. The value of these shares will be included in each of
the Consultant's gross income at the time the shares are received at their
then market value.
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2. COMPANY. The Company may claim a deduction in connection with the
issuance of the shares when the shares are issued in the amount of the
fair market value of the shares as reported by each of the Consultants in
his or her gross income calculation.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents filed by the Company with the Commission are
incorporated by reference in this Prospectus:
1. Annual Report on Form 10-KSB for the year ended December 31, 1995;
2. Quarterly Reports on Form 10-QSB for the quarterly periods ended
March 31, 1996, June 30, 1996 and September 30, 1996;
3. All documents subsequently filed by the Company pursuant to Sections
13(a); 13(c), 14, or 15(d) of the Exchange Act, including but not
limited to, subsequently filed amendments to the above listed
documents and subsequently filed forms 10-KSB, 10-QSB, and 8-K,
prior to the termination of the offering of the securities offered
hereby shall be deemed to be incorporated by reference in this
Prospectus and to be a part hereof from the date of filing of such
documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference shall be deemed to be modified or superseded for
purposes of this Prospectus to the extent that a statement contained herein or
in any subsequently filed document which also is or is deemed to be incorporated
by reference herein modified 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 Prospectus. All information appearing in this
Prospectus is qualified in its entirety by the information and financial
statements (including notes thereto) appearing in the documents incorporated
herein by reference, except to the extent set forth in the immediately preceding
statement.
The Company will provide without charge to each person to whom a copy of
this Prospectus is delivered, upon the oral or written request of such person, a
copy of any document incorporated in this Registration Statement by reference,
except exhibits to such information, unless such exhibits are also expressly
incorporated by reference herein. Request for such information should be
directed to Medical Industries of America, Inc., 1903 S. Congress Ave, Suite
400, Boynton Beach, FL 33426, attention Corporate Secretary, telephone (561)
737-2227.
ADDITIONAL INFORMATION
A copy of all the consulting agreements herein referred to, are attached
hereto as exhibits.
Page 4 of 5
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A copy of the Company's Form 10-KSB for the fiscal year ended December 31, 1995
is also attached hereto with this document.
Any questions regarding the Agreements should be addressed to the Company
at the address and telephone number set forth above.
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 of the
requirements, for filing on Form S-8 and has duly caused this Registrant
Statement to be signed on its behalf by the undersigned thereunto duly
authorized, in the City of Boynton Beach, State of Florida this 31st day of
January, 1997.
MEDICAL INDUSTRIES OF AMERICA, INC.
BY: /s/ EDWIN F. RUSSO
CONSULTANT
Page 5 of 5
<PAGE>
EDWIN F. RUSSO
ATTORNEY AT LAW
6650 STRATFORD DRIVE
PARKLAND, FL 33067
January 31, 1997
Medical Industries of America, Inc.
1903 S. Congress Ave., Ste 400
Boynton Beach, FL 33426
Re: REGISTRATION STATEMENT ON FORM S-8 MEDICAL INDUSTRIES OF AMERICA, INC.
Gentlemen:
We have represented Medical Industries of America, Inc., a Florida corporation
("Company"), in connection with the preparation of a registration statement
filed with the Securities and Exchange Commission on Form S-8 ("Registration
Statement") relating to the proposed issuance of up to 143,5000 shares
("Shares") of the Company's common stock, no par value ("Common Stock") pursuant
to the terms of Consulting Agreements with outside independent experts. The
Agreements are as follows:
a) Agreement with MCOA, Inc. dated January 27, 1997
b) Agreement with Jones, Foster, Johnson and Stubbs dated January 17,
1997
c) Agreement with Mirkin & Woolf, P.A. dated January 10, 1997
d) Agreement with Strategica, Inc. dated December 20, 1996
e) Agreement with R. Davison dated January 28, 1997.
In this connection, we have examined originals or copies identified to our
satisfaction of such documents, corporate and other records, certificates, and
other papers as we deemed necessary to examine for purposes of this opinion,
including but not limited to all of the above referred to consulting agreements
as well as the Certificate of Incorporation of the Company, the Bylaws
of the Company and such other documents as we have deemed necessary.
We are of the opinion that the shares when issued pursuant to the respective
agreements, will be legally issued, fully paid and non-assessable.
We consent to the filing of this Opinion as an Exhibit to the Registration
Statement.
Very truly yours,
By: /S/ EDWIN F. RUSSO
Edwin F. Russo
Attorney At Law
<PAGE>
EXHIBIT A
CONSULTANT AGREEMENT
THE CONSULTING AGREEMENT is made as of the 27th day of January, 1997, by
and between MCOA, INC., a Florida corporation, with principal offices at 2622
Timber Creek Circle, Boca Raton, Florida 33431 ("Consultant") and Medical
Industries of America, Inc., ("Client"), a Florida corporation with principal
offices located at 1903 S. Congress Avenue, Suite 400, Boynton Beach, FL 33426.
WHEREAS, Consultant and Client wish to enter into an agreement under which
Consultant will provide at least six (6) qualified medical doctors to perform
professional services to patients generated by client.
NOW, THEREFORE, for the mutual promises and other consideration described
herein and for other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties hereto agree as follows:
1. INFORMATION TO BE FURNISHED BY CLIENT. Client shall furnish Consultant with
current information about its patients and potential patients and shall also
provide any other information requested by Consultant to assist Consultant in
providing services to (Client), patients ("Client Information").
2. SERVICES PROVIDED AND TO BE PROVIDED BY CONSULTANT. Consultant will hire
qualified medical doctors to provide professional services to Client's patients
initially in the Central Florida area.
3. COMPENSATION FOR SERVICES. As consideration for Consultant to enter into this
Agreement and provide the services described above, Consultant shall receive a
consulting fee of Forty-One Thousand Two Hundred Fifty ($41,250) Dollars per
month, payable on the first (1st) date of each month, beginning February 1997.
In addition to the compensation above set forth, Consultant shall be entitled to
be promptly reimbursed for all expenses incurred by Consultant for such things
as travel and other expenses relating to the performance of his services under
this Agreement.
4. TERM AND TERMINATION. This Agreement shall become effective as of January 27,
1997, and shall remain in effect for three (3) months unless extended for three
(3) additional three (3) month periods and unless terminated pursuant to
Paragraph 6, below.
5. RELATIONSHIP OF PARTIES. This Agreement shall not constitute an
employer/employee relationship. It is the intention of each party that the
Consultant shall be an independent contractor, and not an employee of the
Client. Consultant shall not have the authority to act as the agent of the
Client, except when such authority is specifically delegated to Consultant
herein or by any officer of the Client, in writing. Subject to the performance
of Consultant's Services hereunder shall be the sole control of the Consultant.
Page 1 of 4
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6. WITHDRAWAL BY CONSULTANT OR CLIENT. Either party shall be entitled to
withdraw from further performance under this Agreement in the event that the
other party does not perform pursuant to this Agreement. In the event of such a
breach by the Consultant, the Client may terminate this Agreement. In the event
of such a breach by the Client, Consultant shall be entitled, in addition to any
other remedies it may have, to its Consulting Fee for the entire three (3) month
term of this Agreement as liquidated damages. Any other termination must be by
mutual consent of Consultant and Client.
7. REPRESENTATION AND WARRANTIES
A. Consultant represents and warrants that it will use reasonable care
in performing the services required to be provided under this
Agreement and will devote at such time and attention to fully
perform professional services to patients of client. Consultant
shall comply with all applicable statutes, rules and regulations
governing all aspects of the Services to be performed by the
Consultant under this Agreement; provided that, as described in
paragraph 1 of this Agreement, Client shall be fully responsible to
assure all Client Information is accurate and complete.
B. Client represents and warrants that, prior to providing the
Consultant with any non-public information regarding the Client, its
business or operations, Client will advise the Consultant that such
information is non-public.
8. CLIENT'S ADDITIONAL REPRESENTATION AND WARRANTIES. The Client warrants and
represents the following:
A. That is a corporation in good standing in its state of incorporation
and in every other state in which it is now doing business.
B. That the execution of this Agreement has been approved by all
necessary action including without limitation, approval of the board
of directors of the Client.
C. The execution and delivery by the Client of this Agreement does not,
and the performance by the Client of its obligations hereunder will
not, violate any provision of the Certificate of Incorporation or
by-laws of the Client or violate any agreement, instrument law,
ordinance, regulation, order, arbitration award, judgment, or degree
to which the Client is a party, or by which the Client is bound.
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9. INDEMNIFICATION. The Client is to indemnify and hold the Consultant, ("The
Indemnified Party") harmless from and against any and all losses, claims,
damages, liabilities and expenses whatsoever, joint or several, as incurred, to
which such Indemnified Party may become subject under any applicable federal or
state law, or otherwise, related to or arising out of performance of Services
contemplated herein, and will reimburse the Indemnified Party for all expenses
(including counsel fees and expenses) as they are incurred in connection with
the investigation of, preparation for or defense or any pending or threatened
claim or any action or proceeding arising therefrom, whether or not such
Indemnified Party is a party. This client will not be liable under the foregoing
indemnification provision to the extent that any loss, claim, damage, liability
or expense is found in a final judgment by a court to have resulted from
Consultants fraud, willful misconduct or gross negligence.
The Client agrees to notify the consultant promptly of the assertion against it
or any other person of any claim or the commencement of any action or proceeding
relating to any activity or transaction or transaction contemplated by this
Agreement.
10. MISCELLANEOUS. This Agreement shall be interpreted and construed in
accordance with the laws of the State of Florida. The parties agree that
jurisdiction and venue of any dispute arising hereunder shall be in Palm Beach
County, Florida.
Neither party may assign its rights or duties under this Agreement without the
prior written consent of the other party, except that Consultant may assign to
any other party, without Client's consent, its right to receive all or any
portions of the fees and expenses due and owing to it.
This Agreement contains the entire understanding of the parties with respect to
the subject matter hereof. The terms of this Agreement may be altered only by
written agreement between the parties. The failure of either party to object to,
or take affirmative action with respect to any conduct of the other which is in
violation of the terms of the Agreement shall not be construed as a waiver of
the violation or breach, or of any future similar violation or breach.
This Client acknowledges that the Consultant will be performing services to
others during the term of the Agreement and agrees that the services to be
provided hereunder shall be adequate consideration for this Agreement.
Page 3 of 4
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed by its duly authorized officer, or as to an individual party, has
executed this Agreement in his own hand, as of the date first written above.
AGREED TO AND ACCEPTED,
MCOA, INC.
BY: /s/ RONALD RIEWOLD
RONALD RIEWOLD, PRESIDENT
MEDICAL INDUSTRIES OF AMERICA, INC.
BY /s/ MICHAEL F. MORRELL
MICHAEL F. MORRELL, CEO
Page 4 of 4
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EXHIBIT B
CONSULTING AGREEMENT
This Consulting Agreement (this "Agreement") is made this 17th day of
January, 1997, by and between Jones, Foster, Johnston & Stubbs, P.A. 505 S.
Flagler Drive, Suite 1100, West Palm Beach, FL 33402 ("Consultant") and Medical
Industries of America, Inc., a Florida corporation with its principal office at
1903 South Congress avenue, Boynton Beach, Florida 33426 ("Client").
WHEREAS, Consultant has experience in providing corporate and securities
advice for emerging private and public companies; and
WHEREAS, Client has retained and desires to continue to retain the
services of Consultant and Consultant desires to serve Client on the terms and
conditions set forth below.
NOW THEREFORE, in consideration of the mutual promises contained herein,
the benefits to be derived by each party hereunder, and other good and valuable
consideration, the receipt and sufficiency of which are hereby expressly
acknowledge, Consultant and Client agree as follows:
1. ENGAGEMENT. Client hereby engages Consultant to provide Client with
services (as defined below), effective as of January 17, 1997 and continuing
through the Initial Consulting Period (as defined below).
2. SCOPE OF SERVICES TO BE PROVIDED. Consultant hereby accepts the
engagement on the terms and conditions set forth in the Agreement and agrees to
provide the consulting services, which shall consist of but not be limited to:
A. Providing advice and analysis to Client in connection with
business litigation and related legal matters.
<PAGE>
B. Assist Client with litigation matters relative to regulatory
agencies, i.e. United States Securities and Exchange Commission ("SEC"),
National Association of Securities and Exchange Commission ("SEC"),
National Association of Securities Dealers ("NASD"), Florida Division of
Securities ("FDS"), etc. including filings, disclosure, press releases,
listing requirements and the like.
C. Assist Client in negotiating joint venture opportunities. THIS
AGREEMENT SHALL EXPRESSLY EXCLUDE MATTERS RELATING TO CAPITAL RAISING
ASSISTANCE.
3. TERM. This Agreement shall be terminable at will by either party. In
the event of termination pursuant to this Paragraph 3, neither party shall have
any further rights or obligation hereunder after the effective date of
termination, except that the obligation of Client to pay fees earned and to
reimburse costs and expenses of Consultant incurred prior to the effective date
of termination in performance of the services shall continue until such fees,
costs and expenses are paid in full by Client.
4. TIME AND EFFORT OF CONSULTANT. Consultant shall devote that amount of
working time, as necessary, on a weekly basis, to fulfill its obligations under
this Agreement. The particular amount of time may vary from day to day or week
to week. Consultant agrees that it will at all times, faithfully and to the best
of its experience, ability and talents, perform all the duties required of it
under this Agreement.
5. COMPENSATION. Compensation to be paid to Consultant for the services
provided under this Agreement shall be 15,000 common shares in the form of the
Client's common shares of stock ("Shares"), in lieu of cash, determined by the
closing bid price of the date of the filing of the S-8 Registration Statement.
6. REGISTRATION OF CLIENT'S SHARES. Immediately following the execution
date hereof, Client will register the Shares with the SEC under a S-8
registration statement. At Client's sole discretion, the Shares may be issued or
reserved for issuance prior to registration in reliance on exemptions from
registration provided by Section 4 (2) of the Securities Act of 1933 (the
"Act"),
<PAGE>
Regulation D of the Act, and applicable state securities laws. Such issuance on
reservation shall be in reliance on representations and warranties of Consultant
set forth in Paragraph 13 (C) below.
7. COSTS AND EXPENSES. Any expenses incurred by Consultant in carrying out
the services set forth under this Agreement shall be reimbursed by Client within
thirty (30) days written notice by Consultant.
8. PLACE OF SERVICES. The services provided by Consultant hereunder will
be performed primarily through Consultant's office, except as otherwise mutually
agreed by Consultant and Client. It is understood and expected that Consultant
may make contacts with persons and entities and perform services in other
locations as deemed appropriate and directed by Client.
9. INDEPENDENT CONTRACTOR. Consultant will act as an independent
contractor in the performance of duties under this Agreement. Accordingly,
Consultant will be responsible for payment of all federal, state and local taxes
on compensation paid under this Agreement, including income and social security
taxes, unemployment insurance, and any other taxes or business license fees as
may be required.
10. NO AGENCY EXPRESSED OR IMPLIED. This Agreement neither expressly nor
impliedly creates a relationship of principal agent between Consultant and
Client. Consultant is not authorized to enter into any agreements on behalf of
Client. Client expressly retains the right to approve, in its sole discretion,
any and all transactions introduced by Consultant (if any), and to make all
final decisions with respect to activities undertaken by Consultant related to
this Agreement.
11. NONDISCLOSURE AND NONUSE OF CONFIDENTIAL INFORMATION. Consultant
agrees that non- public information concerning the finances, plans, strategies
and overall business operations of Client is highly confidential and proprietary
to Client ("Confidential Information"). This Confidential Information includes,
but is not limited to, the following:
<PAGE>
A. Non--public information related to the business operations,
including financial and accounting information, plans of operations, and
potential mergers or acquisitions prior to the public announcement of
Client;
B. Customer lists, call lists and other non-public customer data of
Client;
C. Memoranda, notes, records, sketches, plans, drawings and any
media used to store, communicate, transmit, record or embody such
Confidential Information of Client;
D. Information treated, marked or otherwise identified by Client as
confidential or as trade secrets. Consultant acknowledges that such
Confidential Information represents legitimate, valuable and protected
interest of Client and gives Client a competitive advantage, which would
cause Client irreparable harm and injury. Consultant therefore agrees
that, in perpetuity or for as long as the Confidential Information remains
confidential, it will not disclose or threaten to disclose the
Confidential Information to any person, partnership, company, corporation,
or to any other business or governmental organization or agency without
the express written consent of Client, as the case may be. Consultant
further agrees not to use or threaten to use the Confidential Information
in any way that is not specifically authorized by, or otherwise contrary
to the interest of Client, as the case may be. Consultant agrees that
unauthorized disclosure or use of Confidential Information constitutes
misappropriation of trade secrets and Confidential Information. Consultant
further agrees that all ownership rights to the Confidential Information
are held or retained by Client as the case may be, and that no right of
ownership shall pass to Consultant by virtue of this Agreement or the
services provided hereunder.
12. REPRESENTATIONS AND WARRANTIES OF CLIENT. Client represents and
warrants to Consultant that:
A. CORPORATE EXISTENCE. Client is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Florida with corporate power to own property and carry on its business as
it is now being conducted.
<PAGE>
B. FINANCIAL INFORMATION. Client has or will cause to be delivered
concurrently with the execution of this Agreement, copies of the
Disclosure Documents (as defined in Paragraph 14 (D) (I) which accurately
sets forth the financial condition of Client as of the respective dates of
such documents.
C. NO CONFLICT. This Agreement has been duly executed by Client and
the execution and performance of this Agreement will not violate or result
in a breach of, or constitute a default in any agreement, instrument,
judgment, decree or order to which Client is a party or to which Client is
subject, nor will such execution and performance constitute a violation or
conflict of any fiduciary duty to which Client is subject.
D. FULL DISCLOSURE. The information concerning Client provided to
Consultant pursuant of this Agreement is, to the best of Clients knowledge
and belief, complete and accurate in all material respects and does not
contain any untrue statement of a materiel fact or omit to state a
material fact required to make the statements made, in light of the
circumstances under which they were made, not misleading.
E. DATE OF REPRESENTATION AND WARRANTIES. Each of the
representations and warranties of Client set forth in this Agreement is
true and correct at and as of the date of execution of this Agreement.
13. REPRESENTATIONS AND WARRANTIES OF CONSULTANT. Consultant represents
and warrants to client that:
A. PRIOR EXPERIENCE. Consultant has experience in the area of
securities and corporate law litigation, if not all, of the services
contemplated by this Agreement for the benefit of the Client.
B. NO CONFLICT. This Agreement has been duly executed by Consultant
and the execution and performance of this Agreement will not violate, or
result in a breach of, or constitute a
<PAGE>
default in any agreement, instrument, judgment, decree or order to which
Consultant is a party or to which Consultant is subject, nor will such
execution and performance constitute a violation or conflict of any
fiduciary duty to which Consultant is subject.
C. REGISTRATION AND/OR EXEMPTION OF THE SHARES. Consultant understands and
acknowledges that any shares issued or reserved for issuance prior to
registration will be so issued or reserved in reliance on the exemptions from
registration provided by Section 4 (2) of The Act, Regulation D and applicable
state securities laws. Representation and warranties by Consultant in this
Paragraph 14 (C) will be used and relied upon by Client of Consultant pursuant
to Section 4 (2) of the Act and Regulation D and immediately of any material
changes of the representations made herein. In this regard, Consultant
represents and warrants that:
i. Consultant has been furnished with a copy of Client's most recent
Annual Report on Form 10-K and all reports or documents required to
be filed under Sections 13 (a), 14 (a) and 15 (d) of the Securities
and Exchange Act of 1934, as amended, including, but not limited to
quarterly reports on Form 10-Q, current reports on Form 8-K and
proxy statements (the "Disclosure Documents").
ii. Consultant has had the opportunity to ask questions and receive
answers concerning the terms and conditions of the Shares to be
issued and/or reserved for issuance, and to obtain any additional
information which Client possesses or can acquire with out
unreasonable effort or expense necessary to verify the accuracy of
information furnished under Paragraph 14 (C) (I) of this Agreement.
iii. By reason of Consultant's knowledge and experience in financial and
business matters in general, and investments in particular,
Consultant is capable of evaluating the merits and risks of this
transaction and in bearing the economic risks of an investment in
the Shares and client in general, and fully understands the
speculative nature of such securities and the possibility of such
loss.
<PAGE>
iv. The present financial condition of Consultant is such that
Consultant is not under any present or contemplated future need to
dispose of any portion of the Shares, if any, to satisfy an existing
or contemplated undertaking need or indebtedness.
v. Consultant is fully aware that any Shares issued to Consultant prior
to registration will be Restricted Securities as defined by Rule 144
of the Act and that any resale of such securities by Consultant may
be governed by Rule 144. Consultant is further aware of the specific
restrictions on resale of such securities contained in Rule 144.
vi. Consultant will not sell. transfer or otherwise dispose of any
Shares issued or reserved for issuance hereunder prior to
registration except in compliance with the Act.
vii. Any and all certificates representing the Shares issued prior to
registration of such Shares and any and all securities issued in
replacement hereof or in exchange, therefore, shall bear the
following legend:
The Shares represented by this Certificate have not been registered
under the Securities Act of 1933 (the "Act") and are "restricted
Securities" as that term is defined in Rule 144 under the Act. The
shares may not be offered for sale, sold or otherwise transferred
except pursuant to an effective registration or pursuant to an
exemption from registration under the act, the availability of which
is to be established to the satisfaction of the company.
D. DATE OF REPRESENTATIONS AND WARRANTIES. Each of the representations and
warranties of Consultant set forth in this Agreement is true and correct at and
as of the date of execution of this Agreement.
<PAGE>
14. NON-EXCLUSIVE SERVICES. Client agrees that the services to be provided
herein are not exclusive. Consultant shall be free to render services of the
same nature or of a similar nature to any other individual or entity during the
term hereof, without the written consent of Client. Consultant understands and
agrees that Client shall not be prevented or barred from retaining other persons
or entities to provide services of the same nature or similar nature as those
provided by Consultant.
15. FACSIMILE COUNTERPARTS. A facsimile, telecopy, or other reproduction
of this Agreement may be executed by one or more parties hereto and such
executed copy may be delivered by facsimile of similar instantaneous electronic
transmission device pursuant to which the signature of or on behalf of such
party can be seen, and such execution and delivery shall be considered valid,
binding and effective for all purposes. At the request of any party hereto, all
parties agree to execute an original of this Agreement as well as any facsimile,
telecopy or other reproduction hereof.
16. CONSOLIDATION OR MERGER. Subject to the provisions of Paragraph 12
hereof, in the event of a sale of the stock, or substantially all of the stock
of Client, or consolidation or merger of Client with or into another corporation
or entity, or the sale of substantially all of the operating assets of the
Client to another corporation, entity or individual. Client may assign its
rights and obligations under this Agreement to its successor-in-interest and
such successor-in-interest shall be deemed to have acquired all rights and
assumed all obligations of Client hereunder; provided, however, that in no event
shall the duties and services of Consultant provided for in Paragraph 2, hereof,
or the responsibilities, authority of powers commensurate therewith, change in
any material respect as a result of such sale of stock, consolidation, merger or
sale of assets. IN WITNESS WHEREOF, the parties have executed this Agreement on
the date above written: CONSULTANT Jones, Foster, Johnston & Stubbs, P.A. BY:
SIGNED BY PETER A. SACHS CLIENT MEDICAL INDUSTRIES OF AMERICA, INC. BY: SIGNED
BY MICHAEL F. MORRELL
<PAGE>
EXHIBIT C
CONSULTING AGREEMENT
This Consulting Agreement (this "Agreement") is made this 10th day of
January, 1997, by and between Mirkin & Woolf, P.A.with offices at 1700 Palm
Beach Lakes Blvd., West Palm Beach, FL 33401 ("Consultant") and Medical
Industries of America, Inc., a Florida corporation with its principal office at
1903 South Congress Avenue, Boynton Beach, Florida 33426 ("Client").
WHEREAS, Consultant has experience in providing corporate and securities
advice for emerging private and public companies; and WHEREAS, Client has
retained and desires to continue to retain the services of Consultant and
Consultant desires to serve Client on the terms and conditions set forth below.
NOW THEREFORE, in consideration of the mutual promises contained herein, the
benefits to be derived by each party hereunder, and other good and valuable
consideration, the receipt and sufficiency of which are hereby expressly
acknowledge, Consultant and Client agree as follows:
1. ENGAGEMENT. Client hereby engages Consultant to provide Client with
services (as defined below), effective as of January 10, 1997 and continuing
through the Initial Consulting Period (as defined below).
2. SCOPE OF SERVICES TO BE PROVIDED. Consultant hereby accepts the
engagement on the terms and conditions set forth in the Agreement and agrees to
provide the consulting services, which shall consist of but not be limited to:
A. Providing advice and analysis to Client in connection with
mergers, acquisitions and other strategic business opportunities.
B. Assist Client with matters relative to regulatory agencies, i.e.
United States Securities and Exchange Commission ("SEC"), National
Association of Securities and Exchange
<PAGE>
Commission ("SEC"), National Association of Securities Dealers ("NASD"),
Florida Division of Securities ("FDS"), etc. including filings,
disclosure, press releases, listing requirements and the like.
C. Assist Client in negotiating joint venture opportunities.
3. TERM. This Agreement shall be terminable at will by either party. In
the event of termination pursuant to this Paragraph 3, neither party shall have
any further rights or obligation hereunder after the effective date of
termination, except that the obligation of Client to pay fees earned and to
reimburse costs and expenses of Consultant incurred prior to the effective date
of termination in performance of the services shall continue until such fees,
costs and expenses are paid in full by Client.
4. TIME AND EFFORT OF CONSULTANT. Consultant shall devote that amount of
working time, as necessary, on a weekly basis, to fulfill its obligations under
this Agreement. The particular amount of time may vary from day to day or week
to week. Consultant agrees that it will at all times, faithfully and to the best
of its experience, ability and talents, perform all the duties required of it
under this Agreement.
5. COMPENSATION. Compensation to Consultant for the services provided
under this Agreement shall be paid at the rate of $225 per hour and shall
initially be paid by delivery of 20,000 shares of the Client's common stock
("Shares"), in lieu of cash, the value of which shall be determined using the
closing bid price on the date of the filing of the S-8 Registration Statement
(the "Filing Date"). Any subsequent increase or decrease in said bid shall inure
to the detriment (in the event of a decrease) or the benefit (in the event of an
increase) of Consultant. Accordingly, for purposes hereof, the product of the
Shares multiplied by the Filing Date closing bid price shall be deemed to be a
cash payment to Consultant, irrespective of the downside risk of depreciation or
upside potential of appreciation of the Shares. Additional compensation due to
Consultant shall be payable in cash within 10 days of invoicing therefore,
unless the parties otherwise agree in writing.
6. REGISTRATION OF CLIENT'S SHARES. Immediately following the execution
date hereof, Client will register the Shares with the SEC under a S-8
registration statement. At Client's sole
<PAGE>
discretion, the Shares may be issued or reserved for issuance prior to
registration in reliance on exemptions from registration provided by Section 4
(2) of the Securities Act of 1933 (the "Act"), Regulation D of the Act, and
applicable state securities laws. Such issuance on reservation shall be in
reliance on representations and warranties of Consultant set forth in Paragraph
13 (C) below.
7. COSTS AND EXPENSES. Any expenses incurred by Consultant in carrying out
the services set forth under this Agreement with the prior written approval of
Client shall be reimbursed by Client within thirty (30) days written notice by
Consultant. Unless otherwise agreed and approved in writing in advance, all
expenses, filing fees, copy and mailing expenses incurred by Consultant
performing their services under this Agreement are the responsibility of
Consultant.
8. PLACE OF SERVICES. The services provided by Consultant hereunder will
be performed primarily through Consultant's office, except as otherwise mutually
agreed by Consultant and Client. It is understood and expected that Consultant
may make contacts with persons and entities and perform services in other
locations as deemed appropriate and directed by Client.
9. INDEPENDENT CONTRACTOR. Consultant will act as an independent
contractor in the performance of duties under this Agreement. Accordingly,
Consultant will be responsible for payment of all federal, state and local taxes
on compensation paid under this Agreement, including income and social security
taxes, unemployment insurance, and any other taxes or business license fees as
may be required.
10. NO AGENCY EXPRESSED OR IMPLIED. This Agreement neither expressly nor
impliedly creates a relationship of principal agent between Consultant and
Client. Consultant is not authorized to enter into any agreements on behalf of
Client. Client expressly retains the right to approve, in its sole discretion,
any and all transactions introduced by Consultant (if any), and to make all
final decisions with respect to activities undertaken by Consultant related to
this Agreement.
11. NONDISCLOSURE AND NONUSE OF CONFIDENTIAL INFORMATION. Consultant
agrees that non- public information concerning the finances, plans, strategies
and overall business operations of Client is
<PAGE>
highly confidential and proprietary to Client ("Confidential Information"). This
Confidential Information includes, but is not limited to, the following:
A. Non--public information related to the business operations,
including financial and accounting information, plans of operations, and
potential mergers or acquisitions prior to the public announcement of
Client;
B. Customer lists, call lists and other non-public customer data of
Client;
C. Memoranda, notes, records, sketches, plans, drawings and any
media used to store, communicate, transmit, record or embody such
Confidential Information of Client;
D. Information treated, marked or otherwise identified by Client as
confidential or as trade secrets. Consultant acknowledges that such
Confidential Information represents legitimate, valuable and protected
interest of Client and gives Client a competitive advantage, which would
cause Client irreparable harm and injury. Consultant therefore agrees
that, in perpetuity or for as long as the Confidential Information remains
confidential, it will not disclose or threaten to disclose the
Confidential Information to any person, partnership, company, corporation,
or to any other business or governmental organization or agency without
the express written consent of Client, as the case may be. Consultant
further agrees not to use or threaten to use the Confidential Information
in any way that is not specifically authorized by, or otherwise contrary
to the interest of Client, as the case may be. Consultant agrees that
unauthorized disclosure or use of Confidential Information constitutes
misappropriation of trade secrets and Confidential Information. Consultant
further agrees that all ownership rights to the Confidential Information
are held or retained by Client as the case may be, and that no right of
ownership shall pass to Consultant by virtue of this Agreement or the
services provided hereunder.
12. REPRESENTATIONS AND WARRANTIES OF CLIENT. Client represents and
warrants to Consultant that:
<PAGE>
A. CORPORATE EXISTENCE. Client is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Florida with corporate power to own property and carry on its business as
it is now being conducted.
B. FINANCIAL INFORMATION. Client has or will cause to be delivered
concurrently with the execution of this Agreement, copies of the
Disclosure Documents (as defined in Paragraph 14 (D) (I) which accurately
sets forth the financial condition of Client as of the respective dates of
such documents.
C. NO CONFLICT. This Agreement has been duly executed by Client and
the execution and performance of this Agreement will not violate or result
in a breach of, or constitute a default in any agreement, instrument,
judgment, decree or order to which Client is a party or to which Client is
subject, nor will such execution and performance constitute a violation or
conflict of any fiduciary duty to which Client is subject.
D. FULL DISCLOSURE. The information concerning Client provided to
Consultant pursuant of this Agreement is, to the best of Clients knowledge
and belief, complete and accurate in all material respects and does not
contain any untrue statement of a materiel fact or omit to state a
material fact required to make the statements made, in light of the
circumstances under which they were made, not misleading.
E. DATE OF REPRESENTATION AND WARRANTIES. Each of the
representations and warranties of Client set forth in this Agreement is
true and correct at and as of the date of execution of this Agreement.
13. REPRESENTATIONS AND WARRANTIES OF CONSULTANT. Consultant represents
and warrants to client that:
<PAGE>
A. PRIOR EXPERIENCE. Consultant has experience in the area of
securities and corporate law including mergers, if not all, of the
services contemplated by this Agreement for the benefit of the Client.
B. NO CONFLICT. This Agreement has been duly executed by Consultant
and the execution and performance of this Agreement will not violate, or
result in a breach of, or constitute a default in any agreement,
instrument, judgment, decree or order to which Consultant is a party or to
which Consultant is subject, nor will such execution and performance
constitute a violation or conflict of any fiduciary duty to which
Consultant is subject.
C. REGISTRATION AND/OR EXEMPTION OF THE SHARES. Consultant
understands and acknowledges that any shares issued or reserved for
issuance prior to registration will be so issued or reserved in reliance
on the exemptions from registration provided by Section 4 (2) of The Act,
Regulation D and applicable state securities laws. Representation and
warranties by Consultant in this Paragraph 14 (C) will be used and relied
upon by Client of Consultant pursuant to Section 4 (2) of the Act and
Regulation D and immediately of any material changes of the
representations made herein. In this regard, Consultant represents and
warrants that:
i. Consultant has been furnished with a copy of Client's most
recent Annual Report on Form 10-K and all reports or documents
required to be filed under Sections 13 (a), 14 (a) and 15 (d) of the
Securities and Exchange Act of 1934, as amended, including, but not
limited to quarterly reports on Form 10-Q, current reports on Form
8-K and proxy statements (the "Disclosure Documents").
ii. Consultant has had the opportunity to ask questions and
receive answers concerning the terms and conditions of the Shares to
be issued and/or reserved for issuance, and to obtain any additional
information which Client possesses or can acquire with out
unreasonable effort or expense necessary to verify the accuracy of
information furnished under Paragraph 14 (C) (I) of this Agreement.
<PAGE>
iii. By reason of Consultant's knowledge and experience in
financial and business matters in general, and investments in
particular, Consultant is capable of evaluating the merits and risks
of this transaction and in bearing the economic risks of an
investment in the Shares and client in general, and fully
understands the speculative nature of such securities and the
possibility of such loss.
iv. The present financial condition of Consultant is such that
Consultant is not under any present or contemplated future need to
dispose of any portion of the Shares, if any, to satisfy an existing
or contemplated undertaking need or indebtedness.
v. Consultant is fully aware that any Shares issued to
Consultant prior to registration will be Restricted Securities as
defined by Rule 144 of the Act and that any resale of such
securities by Consultant may be governed by Rule 144. Consultant is
further aware of the specific restrictions on resale of such
securities contained in Rule 144.
vi. Consultant will not sell. transfer or otherwise dispose of
any Shares issued or reserved for issuance hereunder prior to
registration except in compliance with the Act.
vii. Any and all certificates representing the Shares issued
prior to registration of such Shares and any and all securities
issued in replacement hereof or in exchange, therefore, shall bear
the following legend:
The Shares represented by this Certificate have not been registered
under the Securities Act of 1933 (the "Act") and are "restricted
Securities" as that term is defined in Rule 144 under the Act. The
shares may not be offered for sale, sold or otherwise transferred
except pursuant to an effective registration or pursuant to an
exemption from registration under the act, the availability of which
is to be established to the satisfaction of the company.
<PAGE>
D. DATE OF REPRESENTATIONS AND WARRANTIES. Each of the representations and
warranties of Consultant set forth in this Agreement is true and correct at and
as of the date of execution of this Agreement.
14. NON-EXCLUSIVE SERVICES. Client agrees that the services to be provided
herein are not exclusive. Consultant shall be free to render services of the
same nature or of a similar nature to any other individual or entity during the
term hereof, without the written consent of Client. Consultant understands and
agrees that Client shall not be prevented or barred from retaining other persons
or entities to provide services of the same nature or similar nature as those
provided by Consultant.
15. FACSIMILE COUNTERPARTS. A facsimile, telecopy, or other reproduction
of this Agreement may be executed by one or more parties hereto and such
executed copy may be delivered by facsimile of similar instantaneous electronic
transmission device pursuant to which the signature of or on behalf of such
party can be seen, and such execution and delivery shall be considered valid,
binding and effective for all purposes. At the request of any party hereto, all
parties agree to execute an original of this Agreement as well as any facsimile,
telecopy or other reproduction hereof.
16. CONSOLIDATION OR MERGER. Subject to the provisions of Paragraph 12
hereof, in the event of a sale of the stock, or substantially all of the stock
of Client, or consolidation or merger of Client with or into another corporation
or entity, or the sale of substantially all of the operating assets of the
Client to another corporation, entity or individual. Client may assign its
rights and obligations under this Agreement to its successor-in-interest and
such successor-in-interest shall be deemed to have acquired all rights and
assumed all obligations of Client hereunder; provided, however, that in no event
shall the duties and services of Consultant provided for in Paragraph 2, hereof,
or the responsibilities, authority of powers commensurate therewith, change in
any material respect as a result of such sale of stock, consolidation, merger or
sale of assets.
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
above written:
CONSULTANT Mirkin & Woolf, P.A.
BY: SIGNED BY MARC S. WOOLF
CLIENT
MEDICAL INDUSTRIES OF AMERICA, INC.
BY: SIGNED MICHAEL F. MORRELL
<PAGE>
EXHIBIT D
CONSULTING AGREEMENT
THIS AGREEMENT is made and entered into as of the 20th day of December
1996, by and between Medical Industries of America, Inc., a Florida corporation
("Company") and STRATEGICA GROUP ("Strategica").
WITNESSETH THAT:
WHEREAS, the Company desires to engage Strategica as a consultant for
advice regarding the Company's financial and capital structure; and assistance
in developing a equity capital markets' plan, and
WHEREAS, Strategica is willing to provide such services to the Company for
a fee; and
WHEREAS, the parties hereto desire to enter into this Agreement upon the
terms and conditions hereinafter set forth, and
WHEREAS, the persons signing below are duly authorized to do so on behalf
of Company and its directors and shareholders, as applicable, and this agreement
is binding upon such persons and entities.
NOW, THEREFORE, in consideration of the premises and the mutual promises,
covenants and consideration contained herein, the sufficiency of which is hereby
expressly acknowledged, the parties hereby agree and covenant as follows:
1. SERVICES Strategica agrees to provide certain financial and
managerial advice and services as requested by the officers of the
Company. Strategica shall be required to provide the services reasonably
requested of it hereunder on a timely basis, devoting such time as
Strategica shall deem appropriate in its discretion.
It shall be in the Company's sole discretion as to whether or not to
utilize Strategica's advice and suggestions. In the context of this
Agreement, the terms financial, and managerial consulting services are
defined and understood to include, without limitation, any of the
following:
1. Conduct a due diligence review of the Company's books and
records.
2. Review all proposed acquisition targets and purchase
agreements.
3. Review and provide advice with regards to the Company's
business plans.
4. Provide the Company with assistance involving the acquisition.
<PAGE>
5. Provide the Company with assistance involving the Company for
further access to the equity capital markets.
6. Other related matters.
You hereby retain us to act on your behalf, subject to the matter
set forth herein. At our request, you will furnish or cause to be
furnished to us such current and historical financial and other
information regarding the business of the Company as the Company shall
have available. The Company warrants the accuracy and completeness of any
such information furnished to us to its best knowledge at the time it is
so furnished. In connection with our activities hereunder, you authorize
us to make appropriate use of such information, including discussing it
with, and delivering it to, external consultants, but only after receipt
of an appropriate confidentiality letter, if required.
2. PERFORMANCE AS DISTINGUISHED FROM ADVICE Strategica shall have no
obligation to carry out or perform any program, task or act that may develop
from its advice and consultation. The Company shall be solely responsible for
such performance. Strategica makes no representation or warranty as to the
results of success the Company may achieve by reason of the advice provided by
Strategica.
3. CONSULTING FEES In consideration of Strategica's execution of this
Agreement, the Company agrees to pay Strategica a non-refundable retainer
payment of $25,000 plus out-of-pocket expenses that may be incurred by
Strategica, payable as follows: (a) $12,500 upon the signing of this agreement,
(b) $12,500 upon written notification from Strategica that Strategica is
satisfied with the initial results of its consulting review and intends to
complete its review, and (c) upon receipt of invoice(s), the Company shall pay
any reasonable out-of-pocket expenses. The $12,500 retainer payment as described
in part (b) of the previous sentence will be the result of the sale of the
Company's S-8 stock in the open market, furnished by the Company to Strategica,
and the number of shares to be furnished will be in an amount adequate to
satisfy the Company's payment obligations hereunder. Out-of-pocket expenses
shall include, but not be limited to, professionals employed by Strategica, all
travel expenses and lodging, research data, duplicating and courier services.
Fees and expenses during the consulting review in excess of $5,000 in the
aggregate shall not be incurred prior to the Company's written approval.
4. TERM The Term of this Agreement shall commence on the date hereof and
continue for a term of ninety (90) days
5. NON-EXCLUSIVE The consulting and advisory services to be rendered
hereunder by Strategica shall be on a non-exclusive basis. Strategica may render
similar and/or dissimilar services to any other person, firm or corporation.
<PAGE>
6. INDEMNIFICATION The Company will indemnify and hold harmless,
Strategica, its officers, directors, shareholders, managing directors, agents,
employees and controlling persons (each an "Indemnified Person") from and
against any and all losses, claims, damages, liabilities, and expenses, joint or
several or both (including all fees of counsel and expenses in connection with
the preparations for or defense of any claim, action or proceeding), caused by
or arising out of an Indemnified Person's action pursuant to this Agreement,
except such losses, claims, damages, liabilities or expenses as are found in a
final judgment of a court of competent jurisdiction to have resulted primarily
from an Indemnified Person's gross negligence or willful misconduct. No
Indemnified Person shall have any liability to the Company as a result of such
claims, damages, or expenses except for those which a final judgment of a court
of competent jurisdiction determines were incurred primarily as a result of such
Indemnified Person's gross negligence or willful misconduct. The Company will
promptly notify an Indemnified Person of the assertion against it or any other
person of a claim or the commencement of any action of proceeding relating to
transactions contemplated by this Agreement. The provisions contained herein
relating to indemnification will survive any termination of this Agreement.
7. NO PARTNERSHIP, NO AGENCY Neither party to this Agreement is the agent,
partner, employee or joint venture of or with the other. Neither party shall act
as any of the above for or on behalf of the other, nor in any manner assume or
create any financial or other obligation on behalf of the other.
8. SEVERABILITY Nothing in this Agreement shall require the commission of
any act or payment of any compensation which is contrary to any express
provision of law or contrary to the policy of express law; and if there shall
exist any conflict between any provision of this Agreement and any such law or
policy, the latter shall prevail; and the provision or provisions of this
Agreement as effected shall be curtailed, limited or eliminated to the extent
(but only to the extent) necessary to remove such conflict; and as so modified,
this Agreement shall continue in force and effect.
9. NOTICES All notices required or given under or in connection with this
Agreement shall be given in writing by addressing the same at the following
addresses:
If to Company: Medical Industries of America, Inc..
1903 S. Congress Avenue, Suite 400
Boynton Beach, FL 33426
561-737-2227 phone or 561-737-5008 fax
If to Strategica: Strategica Group
1221 Brickell Ave., Ste. 2600
Miami, Florida 33131
305-536-1402 phone or 305-536-1486 fax
<PAGE>
or at such other addresses in the United States which one party from time
to time may give the other by written notice and by the mailing of the
same be registered or certified mail, return receipt requested, so
addressed, postage prepaid, or by delivery of same, toll prepaid, to a
telegraph or cable company, or by delivery of the same personally.
10. OBLIGATIONS EXPRESSED This Agreement contains the entire understanding
of the parties and no other representation, promise or agreement, oral or
otherwise shall be of any force and effect.
11. ASSIGNMENT OR SALE OF BUSINESS BY THE COMPANY The Company shall not
assign this Agreement without the written consent of Strategica. If the Company
shall sell or otherwise transfer substantially all of its business or assets to
one or more third party in one or more transactions or otherwise consolidate or
merge its business with a third party, the Company agrees that a condition of
such sale, transfer, consolidation or merger shall be the assumption by such
third party of all of the Company's liabilities and obligations hereunder. In
all respects, this Agreement shall be binding upon and inure to the benefit of
the respective parties and their respective successors and assigns.
12. OTHER ADVISORS No fee payable to any other financial consultant or
advisor either by the Company or any other party, shall reduce or otherwise
effect any fee payable hereunder to Strategica.
13. MISCELLANEOUS PROVISIONS The instrument sets forth the entire
agreement between the parties hereto and may not be canceled, altered or amended
except by an instrument in writing duly executed by both of the parties hereto.
No waiver of any breach hereof in any one instance shall be deemed to be a
waiver of any term or condition. This Agreement shall be construed and governed
in accordance with the laws of the State of Florida and the parties agree that
proper venue shall be in Dade County, Florida. The parties waive trial by jury
in the event of any dispute.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
on the day and year above written.
Medical Industries of America, Inc..
By: /s/ MICHAEL F. MORRELL
Name: Michael F. Morrell
Title: Chairman and CEO
Duly Authorized
Strategica Group
By: /s/ HARRY GURWITCH
Name: Harry Gurwitch
Title: Managing Director
<PAGE>
EXHIBIT E
CONSULTANT AGREEMENT
THE CONSULTING AGREEMENT is made as of the 28th day of January, 1997, by
and between Robin Davison ("Consultant"), of P.O. Box 90141, Gainesville, FL
32607 and Medical Industries of America, Inc., ("Client"), a Florida corporation
with principal offices located at 1903 S. Congress Avenue, Boynton Beach, FL
33426.
WHEREAS, Consultant and Client wish to enter into an agreement under which
Consultant will provide specific nurses services to Client in the areas of
nursing in which consultant has had many years of experience.
NOW, THEREFORE, for the mutual promises and other consideration described
herein and for other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties hereto agree as follows:
1. SERVICES PROVIDED AND TO BE PROVIDED BY CONSULTANT. Consultant will
devote such time as is required in the field of mobile cardiac catherizations
and the like.
2. COMPENSATION FOR SERVICES. As consideration for Consultant to enter
into this Agreement and provide the services described above, Consultant shall
receive a consulting fee of Twenty-Nine Hunderd ($2,900) Dollars .
3. TERM AND TERMINATION. This Agreement shall become effective as of
January 28, 1997, and shall remain in effect for on a demand basis for not more
than thirty (30) days.
4. RELATIONSHIP OF PARTIES. This Agreement shall not constitute an
employer/employee relationship. It is the intention of each party that the
Consultant shall be an independent contractor, and not an employee of the
Client. Consultant shall not have the authority to act as the agent of the
Client, except when such authority is specifically delegated to Consultant
herein or by any officer of the Client, in writing. Subject to the performance
of Consultant's Services hereunder shall be the sole control of the Consultant.
5. WITHDRAWAL BY CONSULTANT OR CLIENT. Either party shall be entitled to
withdraw from further performance under this Agreement in the event that the
other party does not perform pursuant to this Agreement. In the event of such a
breach by the Consultant, the Client may terminate this Agreement. In the event
of such a breach by the Client,
Page 1 of 3
<PAGE>
Consultant shall be entitled, in addition to any other remedies it may have, to
its Consulting Fee for the entire one (1) month term of this Agreement as
liquidated damages. Any other termination must be by mutual consent of
Consultant and Client.
6. CLIENT'S ADDITIONAL REPRESENTATION AND WARRANTIES. The Client warrants
and represents the following:
A. That is a corporation in good standing in its state of
incorporation and in every other state in which it is now doing business.
B. That the execution of this Agreement has been approved by all
necessary action including without limitation, approval of the board of
directors of the Client.
C. The execution and delivery by the Client of this Agreement does
not, and the performance by the Client of its obligations hereunder will
not, violate any provision of the Certificate of Incorporation or by-laws
of the Client or violate any agreement, instrument law, ordinance,
regulation, order, arbitration award, judgment, or degree to which the
Client is a party, or by which the Client is bound.
7. INDEMNIFICATION. The Client shall indemnify and hold the Consultant,
("The Indemnified Party") harmless from and against any and all losses, claims,
damages, liabilities and expenses whatsoever, joint or several, as incurred, to
which such Indemnified Party may become subject under any applicable federal or
state law, or otherwise, related to or arising out of performance of Services
contemplated herein, and will reimburse the Indemnified Party for all expenses
(including counsel fees and expenses) as they are incurred in connection with
the investigation of, preparation for or defense or any pending or threatened
claim or any action or proceeding arising therefrom, whether or not such
Indemnified Party is a party. This client will not be liable under the foregoing
indemnification provision to the extent that any loss, claim, damage, liability
or expense is found in a final judgment by a court to have resulted from
Consultants fraud, willful misconduct or gross negligence.
8. The acceptance of the Medical Industries of America shares of common
stock by the Consultants and the sale thereof shall constitute of full release
by the Consultant of the client.
9. MISCELLANEOUS. This Agreement shall be interpreted and construed in
accordance with the laws of the State of Florida. The parties agree that
jurisdiction and venue of any dispute arising hereunder shall be in Alachua
County, Florida.
Page 2 of 3
<PAGE>
This Agreement contains the entire understanding of the parties with
respect to the subject matter hereof. The terms of this Agreement may be altered
only by written agreement between the parties. The failure of either party to
object to, or take affirmative action with respect to any conduct of the other
which is in violation of the terms of the Agreement shall not be construed as a
waiver of the violation or breach, or of any future similar violation or breach.
This Client acknowledges that the Consultant will be performing services
to others during the term of the Agreement and agrees that the services to be
provided hereunder shall be adequate consideration for this Agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be executed by its duly authorized officer, or as to an individual party, has
executed this Agreement in his own hand, as of the date first written above.
AGREED TO AND ACCEPTED
BY: /s/ ROBIN DAVISON
ROBIN DAVISON
MEDICAL INDUSTRIES OF AMERICA, INC.
BY: /s/ MICHAEL F. MORRELL
CHAIRMAN AND CEO
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