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Exhibit 99.2
Execution Copy
FINANCIAL CONSULTING AGREEMENT
AGREEMENT made as of this 4 th day of May, 2007 by and between Andover Medical, Inc.
(the "Company") with an address at 510 Turnpike Street, Suite 204,
North Andover, MA 01845 and Marc Waldman (the "Consultant"), with
an address at 10 Century Trail, Harrison, NY 10528-1702.
W I T N E S S E T H
WHEREAS, the Consultant is a consultant of Ortho-Medical
Products, Inc., a wholly-owned subsidiary of the Company;
WHEREAS, the Company believes it is in its best interest to
retain Consultant to find potential target companies to be acquired
by the Company and/or facilitate in the acquisition of such target
companies and Consultant wishes to perform such consulting services
on behalf of the Company;
WHEREAS, the Company desires to compensate the Consultant in
connection with such services and to retain the Consultant to
provide on-going financial consulting services; and
WHEREAS, the Consultant desires to be retained to render such
services.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, the parties hereto
hereby agree as follows:
1.
The Services . The Company hereby retains the
Consultant on a non-exclusive (to both parties) basis to perform
consulting services related to mergers and acquisitions, corporate
finance and other financial services matters, and the Consultant
hereby accepts such retention. In this regard, subject to the terms
set forth below, the Consultant shall furnish to the Company advice
and recommendations with respect to such aspects of the business
and affairs of the Company as the Company shall, from time to time,
reasonably request upon reasonable notice. In addition, the
Consultant shall assist the Company in evaluating and negotiating
particular contracts or transactions at such times and on such
schedule as the Company and the Consultant may mutually
agree. In addition to the foregoing consulting services, the
Company and the Consultant acknowledge and agree that the
Consultant may act as a finder or financial consultant in various
business transactions not originated by Consultant, but in which
the Company may be involved, such as mergers, acquisitions or joint
ventures.
2.
Compensation for Services .
(a)
Finder’s Fees . The Company hereby agrees that
in the event the Consultant shall first introduce the Company or
any of its affiliates to another party or entity, and a transaction
is
consummated, the Company shall pay to the
Consultant a fee equal to (i) two (2%) percent of the amount of the
Consideration (as defined below) paid in such transaction, one (1%)
percent of which shall be paid in cash and one (1%) percent of
which shall be paid in shares of the Company’s common stock
valued at the closing price on the second business day before such
transaction is consummated, plus (ii) options to purchase 20,000
shares of the Company’s common stock under the
Company’s 2006 Employee Stock Incentive Plan at an exercise
price equal to the closing price of the Company’s Common
Stock on the second business day before such transaction is
consummated and vesting in 24 equal monthly installments commencing
on the day such transaction is consummated. The underlying shares
of Common Stock shall be included in the next available Form S-8
Registration Statement of the Company. Such fee shall be paid at
the closing of the transaction to which it relates, and shall be
payable whether or not the transaction involves stock, or a
combination of stock and cash, is made on the installment sale
basis, or any other acquisition structure. In addition, if the
Company shall, within 12 months immediately following the
termination of this Agreement, consummate a transaction with any
party first introduced by the Consultant to the Company prior to
such termination, the Company shall pay to the Consultant a fee
with respect to such transaction calculated in accordance with this
paragraph.
(b)
Fee for Consulting Services . For all transactions not
originated by Consultant, but for which Consultant advises the
Company, negotiates or evaluates an investment or business
relationship, or otherwise facilitates the consummation of the
closing of a transaction, the Company shall pay to the Consultant,
a fee equal to one percent (1%) of the amount of the Consideration
paid in such transaction, one-half of one percent (0.5%) of which
shall be paid in cash and one-half of one percent (0.5%) of which
shall be paid in shares of the Company’s common stock at the
closing price on the second business day before such transaction is
consummated.
(c)
Additional Provisions regarding Fees .
(i)
Definition of "Consideration" . For purposes of
calculating the Consultant’s fee under the foregoing
Sections, the term "Consideration" shall include any and all forms
of value transferred by the purchaser to the seller in such
transaction and treated as purchase price or an adjustment to
purchase price for purposes of generally accepted accounting
principles in the Company’s financial statements.
Notwithstanding the foregoing, debt owed by a seller to a third
party which is assumed by a purchaser shall not be included in
"Consideration" for any transaction unless such debt equals more
than sixty percent (60%) of the total value of the transaction. The
value of any Consideration shall be as stated in the relevant
documents, or if not stated, the fair market value thereof (as
mutually determined by the Company and the Consultant). To
the extent any Consideration is contingent at the time of closing,
the Company shall pay the Consultant a supplement to his fee at
such time as any additional, contingent Consideration is thereafter
paid. This provi
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