Keating Securities, LLC Greenwood Village, Colorado 80111-2739
Xxxxxxx
Securities, LLC
0000
XXX Xxxxxxx, Xxxxx 0000
Xxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
(000)
000-0000
(000)
000-0000 fax
May
__,
2006
Mr.
Xxxxx
Xxxxxxx, President
Multi-Link
Telecommunications, Inc.
000X
Xxxxxxxxx Xxxxxxxxx, Xxxxx 00
Xxxx
Xxxxx, Xxxxxxx, 00000
Dear
Xx.
Xxxxxxx:
This
letter will confirm our agreement (“Agreement”) that Xxxxxxx Securities, LLC
(“Xxxxxxx”) is authorized to represent Multi-Link Telecommunications, Inc. and
its affiliates, subsidiaries and related entities (collectively, the "Company”)
and to assist the Company as its financial advisor on the terms and conditions
set forth herein. This Agreement shall become effective upon the execution
hereof by both Xxxxxxx and the Company.
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1.
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Performance
of Services.
In its capacity as financial advisor, Xxxxxxx will assist the Company
by
undertaking the following activities, to the extent that such activities
are required or requested by the Company. The services being provided
by
Xxxxxxx hereunder are being rendered solely to the Company as represented
by its Board of Directors (the “Board”). These services are not being
rendered by Xxxxxxx as an agent or as a fiduciary of the shareholders
of
the Company, and Xxxxxxx shall not have any obligation or liability
with
respect to its services hereunder to such shareholders or any other
person, firm or corporation absent fraud or willful misconduct by
Xxxxxxx.
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Xxxxxxx
shall act as the Company's exclusive advisor concerning matters pertaining
to
the Company's efforts to acquire Auriga Laboratories, Inc. (“Auriga”) in a
reverse merger or similar transaction ("Reverse Merger"). Xxxxxxx will assist
the Company in: (i) the corporate, business and financial due diligence
evaluation of Auriga; (ii) the capital and transaction structuring; (iii)
development of capital markets strategy; (iv) valuation analysis; (v) company,
market and industry research; (vi) analysis of various exchange listing
requirements; and (vii) transaction negotiation and execution. The services
set
forth in this paragraph shall be referred to herein in as “Reverse Merger
Services”.
The
parties hereto acknowledge and agree that Xxxxxxx is not rendering legal advice
or performing accounting or auditing services as part of the services provided
under this Agreement. Xxxxxxx shall be free to provide services for other
persons, which services shall not be deemed to be in conflict with the services
to be performed by Xxxxxxx under this Agreement.
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2.
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Term.
The term of this Agreement shall commence on the date of this Agreement
and continue until the earlier of the closing or the abandonment
of the
Reverse Merger (the "Term"). The Term hereof may be extended by the
mutual
written agreement of the parties hereto. Notwithstanding anything
contained herein to the contrary, the provisions of Section 2 (Term),
Section 3 (Compensation), Section 9 (Indemnification), Section 10
(Disclosure) and Section 11 (Miscellaneous) shall survive the termination
and expiration of this Agreement.
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3.
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Compensation.
As compensation for the Reverse Merger Services rendered by Xxxxxxx
under
this Agreement, upon closing of the Reverse Merger between the Company
and
Auriga, the Company shall pay Xxxxxxx a fee of $340,000 at the closing
of
the Reverse Merger.
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4.
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Affiliated
Companies.
The Company acknowledges and agrees, and enters into this Agreement
with
the full knowledge that, Xxxxxxx and its officers, directors, managers,
members, affiliates and related parties may own, directly or indirectly,
a
majority interest in the Company as of the date of this Agreement.
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5.
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Availability
and Accuracy of Information.
The Company shall furnish Xxxxxxx with all reasonable information
and
material requested or required by Xxxxxxx involving the Company and
Auriga
including, without limitation, information concerning historical
and
projected financial results, public and regulatory filings, material
contracts and commitments, proposed financings, acquisitions or other
transactions, and possible and known litigation, environmental and
other
contingent liabilities of the Company and Auriga ("Information").
The
Company also agrees to make available to Xxxxxxx such representatives
of
the Company and Auriga, including, among others, directors, officers,
employees, outside counsel and independent certified public accountants,
as Xxxxxxx may reasonably request. The Company will promptly advise
Xxxxxxx of any material changes in the Company’s or Auriga’s business or
finances. The Company represents and warrants that the Information
provided or made available to Xxxxxxx by the Company and Auriga,
at all
times during the Term hereof, is and shall be, when taken as a whole,
complete and true in all material respects and will not contain any
untrue
statement of a material fact or omit to state a material fact necessary
in
order to make the statements thereof not misleading in light of the
circumstances under which such statements are made. The Company further
represents and warrants that any projections provided to Xxxxxxx
will have
been prepared in good faith and will be based upon assumptions that,
in
light of the circumstances under which they are made, are reasonable.
The
Company acknowledges and agrees that in rendering its services hereunder
Xxxxxxx will be using and relying on the Information, without independent
investigation, appraisal or verification, and Xxxxxxx assumes no
responsibility for the accuracy or completeness of the Information.
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6.
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Indemnification.
The Company agrees to indemnify and hold harmless Xxxxxxx, its affiliates
and their respective officers, directors, members, partners, employees,
agents and affiliates and control persons of any of the above (each
an
“Indemnified Person”) from and against all claims, liabilities, losses or
damages (or actions in respect thereof) or other expenses that are
related
to or arise out of (i) actions taken or omitted to be taken (including
any
untrue statements made or any statements omitted to be made) by the
Company, (ii) any material breach of any warranty, representation
or
agreement of Company contained in this Agreement, or (iii) actions
taken
or omitted to be taken by an Indemnified Person with the consent
of or in
conformity with the actions or omissions of the Company. The Company
shall
not be responsible, however, for any losses, claims, damages, liabilities
or expenses pursuant to the preceding sentence that are finally judicially
determined to have resulted from Xxxxxxx’x or such other Indemnified
Person’s grossly negligent, reckless or wrongful conduct or Xxxxxxx’x
material breach of this Agreement, and Xxxxxxx agrees to indemnify
and
hold Company harmless from any claims, losses, liabilities or damages
incurred by the Company arising out of Xxxxxxx’x grossly negligent,
reckless or wrongful conduct as determined in a final judicial
determination or Xxxxxxx’x material breach of this Agreement. The Company
agrees to reimburse each Indemnified Person for all reasonable
out-of-pocket expenses (including reasonable fees and expenses of
counsel
for such Indemnified Person) of such Indemnified Person in connection
with
investigating, preparing, conducting or defending any such action
or
claim, whether or not in connection with litigation in which any
Indemnified Person is a named party, or in connection with enforcing
the
rights of an Indemnified Person under this Agreement. The indemnity
agreements under this Section shall survive the completion of services
rendered for Company by Xxxxxxx and the termination or expiration
of this
Agreement.
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2
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7.
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Disclosure
and Confidentiality.
Any financial or other advice, descriptive memoranda or other
documentation rendered by Xxxxxxx pursuant to this Agreement may
not be
disclosed publicly or to any third party without the prior written
approval of Xxxxxxx unless such disclosure is required under applicable
law (as advised by counsel), or compelled by a court or other tribunal
of
competent jurisdiction or the same becomes known to third parties
or the
public without release thereof by the Company or its agents. All
non-public information provided by the Company to Xxxxxxx will be
considered confidential information and shall be maintained as such
by
Xxxxxxx, except as required by law or as required to enable Xxxxxxx
to
perform its services pursuant to this Agreement, until the same becomes
known to third parties or the public without release thereof by Xxxxxxx
or
its agents. Xxxxxxx shall at all times abide by the laws and regulations
relating to trading in securities of public companies while in possession
of any material inside information. This provision is intended to
insure,
among other things, that the parties at all times comply with the
provisions of SEC Regulation FD.
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8.
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Miscellaneous.
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A.
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Before
Xxxxxxx or the Company releases any information referring to Xxxxxxx’x
role as the Company’s financial advisor under this Agreement or the
Company uses Xxxxxxx’x name or Xxxxxxx uses the Company’s name in a manner
which may result in public dissemination thereof, the Xxxxxxx or
Company,
as the case may be, shall furnish drafts of all documents or prepared
oral
statements to the other party with reasonable time for comments,
and shall
not release any information relating thereto without the prior written
consent of such other party. Nothing herein shall prevent the Company
from
releasing any information to the extent that such release is required
by
law.
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B.
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Notwithstanding
the foregoing, the Company agrees that, following the consummation
of any
transaction covered by this Agreement, Xxxxxxx shall have the right
to
place advertisements in financial and other newspapers and journals
at
Xxxxxxx'x expense, describing its services to the Company hereunder,
provided that Xxxxxxx will submit a copy of any such advertisements
to the
Company for its prior approval, which approval shall not be unreasonably
withheld.
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3
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C.
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The
Company represents and warrants that this Agreement has been duly
authorized and represents the legal, valid, binding and enforceable
obligation of the Company and that neither this Agreement nor the
consummation of any transactions contemplated hereby requires the
approval
or consent of any governmental or regulatory agency or violates or
conflicts with any law, regulation, contract or order binding the
Company.
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D.
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The
terms, provision and conditions of this Agreement are solely for
the
benefit of the Company and Xxxxxxx and the other Indemnified Persons
and
their respective heirs, successors and permitted assigns and no other
person or entity shall acquire or have a right by virtue of this
Agreement. This Agreement may not be assigned by either party without
prior written consent of the other
party.
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E.
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This
Agreement contains the entire understanding and agreement between
the
parties hereto with respect to Xxxxxxx’x engagement hereunder, and all
prior writings and discussions are hereby merged into this Agreement.
No
provision of this Agreement may be waived or amended except in a
writing
signed by both parties. A waiver or amendment of any term or provision
of
this Agreement shall not be construed as a waiver or amendment of
any
other term or provision.
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F.
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Each
party represents and warrants that it will comply with all applicable
securities and other laws, rules and regulations relating hereto
and that
it shall not circumvent or frustrate the intent of this
Agreement.
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G.
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This
Agreement may be executed by facsimile or electronic signatures and
in
multiple counterparts, each of which shall be deemed an original.
It shall
not be necessary that each party executes each counterpart, or that
any
one counterpart be executed by more than one party so long as each
party
executes at least one counterpart.
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H.
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If
any provision of this Agreement is declared by any court of competent
jurisdiction to be invalid for any reason, such invalidity shall
not
affect the remaining provisions of this
Agreement.
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I.
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This
Agreement shall be governed by and constructed under the laws of
the State
of Colorado without regard to such state’s conflicts of law principles,
and may be amended, modified or supplemented only by written instrument
executed by parties hereto.
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J.
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All
disputes, controversies or claims (“Disputes”) arising out of or relating
to this Agreement shall in the first instance be the subject of a
meeting
between a representative of each party who has decision-making authority
with respect to the matter in question. Should the meeting either
not take
place or not result in a resolution of the Dispute within twenty
(20)
business days following notice of the Dispute to the other party,
then the
Dispute shall be resolved in a binding arbitration proceeding to
be held
in Denver, Colorado in accordance with the international rules of
the
American Arbitration Association. The arbitrators may award attorneys’
fees and other related arbitration expenses, as well as pre- and
post-judgment interest on any award of damages, to the prevailing
party,
in their sole discretion. The parties agree that a panel of three
arbitrators shall be required, all of whom shall be fluent in the
English
language, and that the arbitration proceeding shall be conducted
entirely
in the English language. Any award of the arbitrators shall be deemed
confidential information for a minimum period of five years, except
to the
extent public disclosure of such information is required by applicable
securities laws or regulations.
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K.
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All
notices required by the terms of this Agreement shall be in writing
and
delivered to the other party at the addresses set forth below, either
by
personal delivery, by a recognized international overnight courier
service, or by facsimile or e-mail transmission. Notices will be
deemed
given as of the date of receipt, which date shall be evidenced by
the
signature of an authorized representative of the receiving party
or by
written evidence of a successful transmission of either a facsimile
or
e-mail message.
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If
to
Xxxxxxx:
Xxxxxxx
Securities, LLC
Attn:
Xxxxxxx X. Xxxxxxx, President
0000
XXX
Xxxxxxx, Xxxxx 0000
Xxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
(000)
000-0000 telephone
(000)
000-0000 fax
If
to the
Company:
Multi-Link
Telecommunications, Inc.
Attn:
Xxxxx Xxxxxxx, President
000X
Xxxxxxxxx Xxxxxxxxx, Xxxxx 00
Xxxx
Xxxxx, Xxxxxxx, X.X.X 00000
(000)
000-0000
(000)
000-0000 fax
or
such
other address as indicated by the Company as its primary business address in
its
SEC filings.
[Remainder
of this page intentionally left blank.]
5
If
the
forgoing correctly sets forth the entire understanding and agreement between
the
Company and Xxxxxxx, please so indicate by executing this Agreement as indicated
below and returning an executed copy to Xxxxxxx together, whereupon this
Agreement shall constitute a binding agreement as of the date first above
written.
Very
truly yours,
XXXXXXX
SECURITIES, LLC
By:
/s/
Xxxxxxx X. Xxxxxxx
Xxxxxxx
X. Xxxxxxx, President
ACCEPTED
AND AGREED TO:
Multi-Link
Telecommunications, Inc.
By:
/s/
Xxxxx X. Xxxxxxx
Xxxxx
X.
Xxxxxxx, President
Date:
May
17, 2006
6
