Exhibit 10.38
DRAGONFLY
CAPITAL
December 6, 2004
Xx. Xxxxx Xxxxxxx
Chief Financial Officer
Ophthalmic Imaging Systems Inc.
000 Xxxxxxx Xxx, Xxxxx 0
Sacramento, CA 95815
Dear Xx. Xxxxxxx:
This Letter ("Letter") will represent an agreement between the Dragonfly Capital
Partners, LLC ("Dragonfly") and Ophthalmic Imaging Systems Inc., its affiliates
and assigns (the "Company") with regard to financial advisory services.
In the event that the Company accepts equity line financing from any investor(s)
introduced by Dragonfly or otherwise contacted on behalf of the Company,
Dragonfly shall be entitled to two percent (2.0%) of the first $1,000,000 of
funded amount; plus one percent (1.0%) of the next $1,000,000 of funded amount;
plus one half of one percent (0.5%) of the remaining funded amount ("Funding
Fee") of the equity line drawn within a 40 months period commencing at the first
draw.
In the event that the Company accepts equity or debt financing (other than for
equity line financing) from any investor(s) introduced by Dragonfly or otherwise
contacted on behalf of the Company, within one year of the original
introduction, Dragonfly will be entitled to receive a fee to be mutually
agreeable by the Company and Dragonfly. The Company agrees not to enter into any
financing arrangement with any such investors without first entering into a
mutually beneficial compensation arrangement with Dragonfly. However in case
that the parties do not agree on the terms, the company can enter into financing
arrangement and pay a commission based on the principals above.
Neither Dragonfly nor any of its affiliates (nor any of their respective control
persons, directors, officers, employees or agents) shall be liable to the
Company or to any other person claiming through the Company for any claim, loss,
damage, liability, cost or expense suffered by the Company or any such person
arising out of or related to Dragonfly's Engagement hereunder except for a
claim, loss or expense that arises solely out of or is based solely upon any
action or failure to act by Dragonfly, other than an action or failure to act
undertaken at the request or with the consent of the Company, that is found in a
final judicial determination to constitute bad faith, willful misconduct or
gross negligence on the part of Dragonfly.
The term of this agreement is twelve (12) months from the date hereof; provided,
however, that Xxxxxxxxx's engagement hereunder may be terminated, with or
without cause, by either the Company or Dragonfly upon thirty (30) days prior
written notice to the other party; provided, further, that such termination will
not affect Dragonfly's right to the receipt of payment of any fees or
compensation pursuant to the language in this Letter.
This agreement will be deemed made in California and will be governed by the
laws of the State of California without regard to the conflict of law principles
contained therein. The Company irrevocably submits to the jurisdiction of any
court of the State of California, for the purpose of any suit, action or other
proceeding arising out of this agreement, or any of the agreements or
transactions contemplated hereby, which is brought by or against the Company.
Each of the Company (and, to the extent permitted by law, on behalf of the
Company's equity holders and creditors) and Dragonfly hereby knowingly,
voluntarily and irrevocably waive any right it may have to a trial by
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000 XXXX XXXXXXXXX, XXXXX XXX x XXXXXXXXX, XXXXX XXXXXXXX 00000
Dragonfly Capital Partners, LLC -- Member NASD/SIPC
jury in respect of any claim based upon, arising Out of or in connection with
this agreement and the transactions contemplated hereby.
Any dispute hereunder, if not settled by mutual agreement, shall, at either
party's option, and, upon written notice by one party to the other, be settled
by final and binding arbitration in California, Sacramento. The arbitration
shall be conducted in accordance with the Commercial Dispute Resolution
Procedures and Rules of the American Arbitration Association ("AAA Rules") by a
single disinterested arbitrator appointed in accordance with such AAA Rules.
If the terms of our engagement as set forth in this Letter are agreed to, kindly
sign the enclosed copy of this letter and return it to the undersigned. We look
forward to working with the Company on this assignment.
Sincerely,
Dragonfly Capital Partners, LLC
By: ____________________________
AGREED TO: Xxxx Xxxxxxxxxx
Ophthalmic Imaging Systems Inc.
Managing Director
By: /s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
Chief Financial Officer
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