Exhibit 10.22
TERMINATION AGREEMENT
THIS TERMINATION AGREEMENT, dated as of October 23, 2002 (this
"Termination"), is made by Gish Biomedical, Inc., a California corporation
("Gish"), and T.R. Winston & Company, Inc., a New Jersey corporation ("TRW"),
with respect to that certain Agreement, dated as of July 15, 2002 and attached
hereto as Exhibit A (the "Agreement"), by and between Gish and TRW.
Gish and TRW hereby agree as follows:
1. Termination of Agreement. Effective as of the date hereof, the Agreement
is hereby terminated and all the obligations owing thereunder between the
parties thereto are hereby extinguished.
2. Payment of For Services Rendered. Gish shall pay to TRW, in
consideration and full satisfaction of all services rendered under the Agreement
through the date hereof, the sum of $100,000 (the "Fee"). TRW hereby (a)
acknowledges that the Fee constitutes payment in full for all services rendered
by TRW to Gish under the Agreement through the date hereof and (b)
unconditionally and irrevocably cancels and waives any other right, title or
interest to any other obligations or amounts otherwise owed by Gish to TRW under
the Agreement.
3. Mutual Release.
(a) Release. Each of Gish and TRW hereby unconditionally and irrevocably
releases, acquits, indemnifies and forever discharges the other, of and from any
and all liabilities, actions, obligations, causes of action, claims, demands,
damages, costs, expenses and compensation whatsoever arising, at law or in
equity or otherwise, with respect to the Agreement. All the obligations under
the Agreement are hereby terminated and extinguished.
(b) Acknowledgment of Effect. Each of Gish and TRW acknowledges and
understands that (i) by executing and delivering this Termination, it is forever
giving up the right to sue or attempt to recover money, damages or any other
relief from the other party for all claims it has or may have against such party
with respect to the Agreement, (ii) this Termination is in full accord and
satisfaction of the obligations under the Agreement released hereby, and (iii)
the mutual releases made herein constitute final and complete releases of the
obligations under the Agreement.
4. Governing Law. This Termination shall be governed by, and construed and
enforced in accordance with, the internal laws of New Jersey.
5. Facsimiles; Counterparts. Facsimile transmission of any signed original
document and/or retransmission of any signed facsimile transmission will be
deemed the same as delivery of an original. At the request of either party, the
other party shall confirm facsimile transmission by signing a duplicate original
document. This Termination may be executed in counterparts, each of which shall
be deemed an original, but all of which shall constitute but one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Termination to be
effective as of the date first written above.
Gish:
Gish Biomedical, Inc.,
a California corporation
By: /s/ John W. Galuchie, Jr.
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Name: John W. Galuchie, Jr.
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Title: Chairman
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TRW:
T.R. Winston & Company, Inc.,
a New Jersey corporation
By: /s/ Paul O. Koether
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Name: Paul O. Koether
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Title: Chairman
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Exhibit A
AGREEMENT
AGREEMENT made this 15th day of July, 2002, by and between Gish Biomedical
Corporation (the "Company") a California corporation and T. R. Winston &
Company, Inc., ("TRW"), a New Jersey corporation.
W I T N E S S E T H:
WHEREAS, the Company seeks to obtain sources of financing, which may be in
the nature of a purchase, sale, private placement, merger, consolidation,
reorganization, exchange or like transaction (the "Transaction");
WHEREAS, TRW has special expertise and might be valuable in developing said
Transactions;
WHEREAS, the Company desires to engage the services of TRW and TRW desires
to provide said services all in accordance with the terms and conditions set
forth;
NOW THEREFORE, in consideration of the foregoing mutual covenants and promises
herein contained and intending to be legally bound hereby, the parties agree as
follows:
1. The Company hereby grants TRW the non-exclusive right to arrange
Transactions at a price and on terms satisfactory to the Company for a
period of twelve months.
2. If a Transaction initiated by TRW is closed at any time hereafter, the
Company shall pay to TRW at the closing a cash commission representing
a scaled percentage of all consideration, whether in cash, stock, or
otherwise, paid to or received by the Company ("Consideration") as a
result of said Transaction. Said commission shall be calculated as
follows:
5% of the first $1,000,000
4% of the second $1,000,000
3% of the third $1,000,000
2% of the fourth $1,000,000
1% of gross Consideration above the fourth $1,000,000
3. Any and all expenses incurred by TRW are the sole responsibility of
TRW and are not reimbursable by the Company.
4. A Transaction will be deemed initiated by TRW if TRW notifies the
Company of the identity of a prospective seller, buyer, acquisition
source or financing source and the Company makes no objection thereto
within five working days after receipt of said notice.
5. A Transaction will be deemed closed when the Company pays or receives
any or all of the Consideration.
6. For purposes of this Agreement, the term Company shall include any
subsidiary, affiliate or stockholder of the Company and any entity
created or organized by the Company or its stockholders for the
purpose of engaging in a Transaction.
7. This Agreement constitutes the entire understanding between the
parties hereto with respect to the subject matter hereof and the
parties hereto and each of them acknowledges that there are no
promises, statements, or representations not herein expressed upon
which the parties rely. It is further understood that this Agreement
shall be binding upon the parties, their heirs, administrators,
successors and assigns.
8. This Agreement has been entered into in New Jersey and shall be
construed and interpreted in accordance with the laws of New Jersey.
9. Notice hereunder shall be effective only when sent by registered mail,
return receipt requested, to the Company and to TRW at the addresses
set forth below or to such other address as one party shall notify the
other in writing.
If to TRW: Paul O. Koether, Chairman
T. R. Winston & Company, Inc.
376 Main Street, P.O. Box 74
Bedminster, New Jersey 07921
If to Company: John W. Galuchie, Jr., Chairman
Gish Biomedical, Inc.
22942 Arroyo Vista
Rancho Santa Margarita, CA 92688
IN WITNESS WHEREOF, the parties hereto have set their hands the day and
year first above written.
GISH BIOMEDICAL, INC.
/s/ Brenda L. De Santis /s/ John W. Galuchie, Jr.
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Attest By: John W. Galuchie, Jr., Chairman
T. R. WINSTON & COMPANY, INC.
/s/ Sue Ann Itzel /s/ Paul O. Koether
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Attest By: Paul O. Koether, Chairman