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Exhibit 99.4
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 William Tobin (the "Consultant"), with
an address at 168 Irving Ave, Suite 500F, Port Chester, New York
10573.
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)
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 provision shall survive the expiration or other
termination of this Agreement.
(ii)
Adjustments to Stock . All share amounts of
common stock to be issued to the Consultant pursuant to Sections
2(a) or (b) shall be adjusted to account for any stock splits,
stock dividends, recapitalizations and similar events that may
occur after the date hereof.
3.
Additional Services . If additional services beyond
the foregoing are re
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