Exhibit 1.1
Agreement Between Aurora Financial Services, L.L.C. and
XxxXxxx.Xxx, Inc. Dated October 15, 1999
Exhibit 1.1
AURORA FINANCIAL SERVICES, L.L.C.
INVESTMENT SECURITIES
0000 Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
October 15, 1999
XxxXxxx.Xxx, Inc.
0000 Xxxxxxx Xxxx
Xxx Xxxxxxx, Xxxxx 00000
Re: Equity Placement by Aurora Financial Services, L.L.C. for XxxXxxx.xxx,
Inc.
Gentlemen:
Aurora Financial Services, L.L.C., (hereinafter referred to as "Aurora") hereby
agrees to attempt to raise certain amounts (hereinafter referred to as "the
Required Capital") for XxxXxxx.xxx, Inc. (herein referred to as "BioLynx" and as
the "Issuer"). BioLynx hereby agrees to be bound by this agreement. The required
capital to be raised is as follows:
Aurora agrees to attempt to raise a minimum of $250,000 up to a maximum of
$4,000,000 for the Issuer which will pertain to providing biometric automation
for the control of employees time and attendance for employers.
The efforts of Aurora to raise the required capital are based upon the
following terms and conditions.
1. Engagement. For a period of 180 days from the effective date of the
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Registration Statement under the Securities Act of 1933 (hereinafter
referred to as the ("Prospectus"), related to sale of equity
securities of the Issuer, BioLynx shall grant to Aurora the exclusive
right to raise the Required Capital in the manner to be described in
the Prospectus. Provided, however, notwithstanding anything herein
obtained to the contrary, Aurora shall be entitled to employ other
broker-dealers selected by it to sell all or any portion of the
Required Capital. In that regard, Aurora shall be entitled to reallow
a portion of its commission to such participating broker-dealers
resulting from any of the Required Capital raised by them. Aurora may
terminate the Offering to be described in the Prospectus in the event
that, among other things, (a) certain specified actions, usually
associated with extremely adverse economic and market conditions, have
been taken by the principal national securities exchanges or by
governmental authorities, or (b) other events have occurred or are
pending or threatened which, in the judgement of Aurora, materially
impair the investment quality of an investment in the Issuer.
2. Termination. If the Offering fails to have an Initial Closing
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resulting in the raising of the minimum of the Required Capital to be
described in the Prospectus within 180 days following the effective
date of the Prospectus, this Agreement shall terminate with respect to
the provisions which relate to the failure to have such Initial
Closing. Likewise, if the said offering shall fail to close by the
"Extended Subscription Period" (and/or terms of similar import) as
described in the Prospectus, this agreement shall terminate with
respect to the provisions which relate to the Issuer. As used herein,
the terms "Initial Closing", "Subsequent Closings" and "Extended
Subscription Period" shall have the meanings fairly ascribed to them
in the Prospectus. Notwithstanding anything herein contained to the
contrary, in the event that either party hereto violates the terms of
this Agreement or the securities laws of the United States any state
wherein interests in the Issuer are to be offered for sale, or if
either party shall furnish to the other party hereunder information
which is untrue or misleading or fails to state the facts which make
any such information so supplied misleading, then the other party may
terminate this Agreement without any further liability hereunder.
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3. The Offering. The Required Capital shall be raised by Aurora pursuant
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to an offering involving the public sale of securities (hereinafter
referred to as the "Offering"). The Offering shall be conducted in
conformity with the securities Act of 1933, as amended (herein
referred to as the "1933 Act"). The Offering documents shall be
prepared at the direction of BioLynx by parties selected by and who
are acceptable to Aurora. The work on the Prospectus with respect to
the Offering shall begin upon the effective date of this Agreement.
4. Best Efforts. The Offering will be on a "best effort" only basis,
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with no guarantees by Aurora that any or all of the Required Capital
shall be raised.
5. Compensation. As its compensation in connection with the raising of
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the Required Capital, Aurora shall be entitled to receive the
following:
(a) A sales commission equal to 10% of the Required Capital raised by
Aurora or any broker-dealer selected by Aurora and acting
pursuant to the terms of this Agreement for the Issuer. Any sales
commissions shall be paid upon any Initial, Subsequent or Final
Closing of the Offering.
(b) Aurora will receive a 3% non refundable and non accountable
investment banking fee.
(c) In addition, Aurora will receive 25,000 shares of common stock in
XxxXxxx.Xxx, Inc.
(d) The agreement of BioLynx evidenced by its execution hereof that
should BioLynx or any of its affiliates undertake within the
first 60 month period following the date hereof, an offering or
offerings of securities for the purpose of raising capital from
third party investors, then Aurora (or any successor to Aurora)
will be tendered a right of first refusal to act as selling agent
or dealer manager, as then appropriate, in respect to any such
offering or offerings.
(e) In the event BioLynx (or any successor or successors or
subsidiary of BioLynx) shall determine within the first 60 month
period following the date hereof to undertake a program or plan
to issue common stock or other form of equity security whether or
not in furtherance of a contemplated public offering, then
BioLynx agrees to tender to Aurora (i) a right of first refusal
in general accord with Subparagraph (c) of this Paragraph 5, and
(ii) the right to purchase for a nominal consideration a generous
number, giving effect to the then existing circumstances, of
rights or warrants to acquire at a favorable exercise price a
recognizable percentage of equity in the entity resulting from
any such offering, reorganization or recapitalization.
6. Indemnification. Each of the parties hereto shall indemnify and hold
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the other harmless against any losses, claims, damages or liability,
joint or several, to which the indemnified party may become subject
under the 1933 Act or otherwise, by the other party by reason of any
representation, warranty or covenant contained in this Agreement or
resulting from any untrue statements of a material fact or omission
thereof with respect to the information concerning the parties to be
contained in any Prospectus relating to the Offering made in reliance
upon and in conformity with the information furnished to the
indemnified party. Insofar as this indemnity agreement relates to any
untrue statement or omission made in any such Prospectus, this
indemnity agreement shall not inure to the benefit of the indemnified
party if (i) the other party shall have furnished to the indemnified
party an amendment or supplement to the Prospectus which corrected
such untrue statement or omission which is the basis for the loss,
liability, claim, damage or expense for which indemnification is
sought and (ii) the indemnified party failed to send or give a copy of
such corrective amendment or supplement to the person asserting any
such loss, liability, claim, damage or expense at such time as the
Prospectus as so amended or supplemented, is required under the 1933
Act to be delivered by the indemnified party to such person.
(a) BioLynx agrees to indemnify and hold harmless Aurora and each
person, if any, who controls Aurora within the meaning of the
1933 Act, from and against any and all losses, claims, damages or
liabilities, joint or several (including, without limitation, any
and all expenses whatsoever reasonably
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incurred in investigating, preparing, or defending against the
same), which arise out of or are based upon (i) any untrue
statement or alleged untrue statement of a material fact
contained in the Prospectus, or any amendment or supplement
thereto, or any application or other document filed in any state
or jurisdiction in order to qualify the Offering under the Blue
Sky or securities laws thereof ("Blue Sky Application"), if
necessary, or to secure an exemption therefrom, or which arise
out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein in light of the
circumstances under which they were made not misleading and (ii)
any actions, direct or indirect, in connection with the offering
and sale of the securities by BioLynx or any of their respective
agents or employee (other than by Aurora its employees or
affiliates), employees or affiliates in violation of the 1933
Act, or any other applicable federal or state securities laws or
regulations.
BioLynx agrees to promptly notify Aurora of the commencement of
any litigation or proceedings against BioLynx or any of their
respective officers, directors, employees, agents or affiliates
in connection with the Offering.
(b) Aurora agrees to indemnify BioLynx and their respective
affiliates, and hold each of them harmless against any losses,
claims, damages or liabilities to which they or either of them
may become subject, under the 1933 Act or the Securities Exchange
Act of 1934, as amended, or otherwise, insofar as such losses,
claims damages or liabilities (or actions in respect thereof)
arise out of or are based upon (i) any untrue statement or
alleged untrue statement of any material fact made by Aurora or
arising out of any violation or alleged violation by Aurora or
any of Aurora's representations, warranties, covenants or
agreements contained in this Agreement, (ii) any misuse or
unauthorized use in any jurisdiction of any supplemental sales
literature (whether designed solely for broker-dealer use or
otherwise) by Aurora or (iii) any delivery, distribution or
furnishing by Aurora, either orally or in writing, of information
not contained in or materially inconsistent with, the Prospectus
or supplemental sales literature (as they, respectively, may be
amended or supplemented).
(c) Promptly after receipt by an indemnified party under subparagraph
(a) or (b) above of notice of the commencement of any action,
such indemnified party shall, if a claim in respect thereof is to
be made against the indemnifying party under such subparagraph,
notify the indemnifying party in writing of the commencement
thereof; but the omission to so notify the indemnifying party
shall not relieve it from any liability which it may have to any
indemnified party otherwise than under such subparagraph. In case
any such action shall be brought against any indemnified party,
and it shall notify the indemnifying party, of the commencement
thereof, the indemnifying party shall be entitled to participate
in, and, to the extent that it shall wish, to jointly participate
with any other indemnifying party, similarly notified, in the
defense thereof with the indemnified party. The indemnifying
party shall pay all legal fees and expenses of the indemnified
party in the defense of such claims and actions, provided,
however, that the indemnifying party shall not be obliged to pay
legal expenses and fees to more than one law firm in connection
with the defense of similar claims arising out of the same
alleged acts or omissions giving rise to such claims,
notwithstanding that such actions or claims are alleged or
brought by one or more parties against more than one indemnified
party. In case such claims or actions are alleged or brought
against more than one indemnified party, then the indemnifying
party shall only be obliged to reimburse the expenses and fees of
the one law firm which has been selected by a majority of the
indemnified parties against which such action as finally brought
and, in the event a majority of such indemnified parties are
unable to agree on which law firm or which expenses or fees will
be reimbursed by the indemnifying party. The payments shall be
made to the first law firm of record representing an indemnified
party against the action or claim. Such law firm shall be paid
only to the extent of services performed by such law firm and no
reimbursement shall be payable to law firm on account of legal
services performed by another law firm. Notwithstanding anything
contained herein to the contrary, an indemnified party may,
without the prior consent of the indemnifying party, settle or
compromise any action brought against such indemnified party.
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(d) The provisions of this Paragraph 6 shall remain in full force and
effect after the termination of this Agreement.
7. Effective Date. The effective date of this Agreement is the last date
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that a party hereto executes same.
8. Further Acts. Each party hereto recognizes that this Agreement is not
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complete in every detail with respect to the Offering, and that it may
be necessary to amend this Agreement from time to time in order to
carry out the intent hereof. However, each party will proceed in good
faith to arrive at whatever necessary adjustments are needed in order
to carry out the terms of this Agreement. Further, each party agrees
to provide in a timely and complete manner all information needed to
complete the preparation of the Offering documents and to supplement
any such information as needed during the course of the Offering or
thereafter. In this connection, the Issuer undertakes and agrees to
provide Aurora with all such information and data as it may reasonably
require to comply with its statutory and regulatory obligations in
connection with the Offering, the application of proceeds, the
operations of the Issuer and the like.
9. Attorney's fees. In the event that it should become necessary for any
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party entitled hereunder to bring suit against any other party to this
Agreement for enforcement of the covenants herein contained, the
parties hereby covenant and agree that the party who is found to be in
violation of said covenants shall also be liable for all reasonable
attorney's fees and costs of court incurred by the other parties
hereto.
10. Benefit. All the terms and provisions of this Agreement shall be
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binding upon and inure to the benefit of and be enforceable by the
parties hereto, and their respective heirs, executors, administrators,
personal representatives, successors and permitted assigns.
11. Notices. All notices, requests, demands and other communications
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hereunder shall be in writing and delivered personally or sent by
registered or certified United States mail, return receipt requested
with postage prepaid, if to Aurora addressed to Mr. Xxxxx Xxxxxx at
0000 Xxxxxx, Xxxxx 000, Xxxxxxx, XX 00000, and if to BioLynx,
addressed to Xxxx X Xxxxxx XX President and CEO 0000 Xxxxxxx Xxxx, Xxx
Xxxxxxx, Xxxxx 00000. Any party hereto may change its address upon 10
days written notice to any other party hereto.
12. Construction. Words of any gender used in this Agreement shall be held
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and construed to include any other gender, and words in the singular
number shall be held to include the plural, and vice versa, unless the
context requires otherwise. In addition, the pronouns used in this
Agreement shall be understood and construed to apply whether the party
referred to is an individual, partnership, joint venture, corporation
or an individual or individuals doing business under a firm or trade
name, and the masculine, feminine and neuter pronouns shall each
include the other and may be used interchangeably with the same
meaning.
13. Waiver. No course of dealing on the part of any party hereto or its
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agents, or any failure or delay by any such party with respect to
exercising any right, power or privilege of such party under this
Agreement or any instrument referred to herein shall operate as a
waiver thereof, and any single or partial exercise of any such right,
power or privilege shall not preclude any later exercise thereof or
any exercise of any other right, power or privilege hereunder or
thereunder.
14. Cumulative Rights. The rights and remedies of any party under this
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Agreement and the instruments executed or to be executed in connection
herewith, or any of them, shall be cumulative and the exercise or
partial exercise of any such right or remedy shall not preclude the
exercise of any other right or remedy.
15. Invalidity. In the event any one or more of the provisions contained
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in this Agreement or in any instrument referred to herein or executed
in connection herewith shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect the other provisions of this
Agreement or any such other instrument.
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16. Headings. The headings used in this Agreement are for convenience and
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reference only and in no way define, limit, amplify or describe the
scope or intent of this Agreement, and in no way effect or constitute
a part of this Agreement.
17. Excusable Delay. None of the parties shall be obligated to perform and
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none shall be deemed to be in default hereunder, if the performance of
a non-monetary obligation is prevented by the occurrence of any of the
following, other than as the result of the financial inability of the
party obligated to perform: acts of God, strikes, lock-outs, other
industrial disturbances, acts of a public enemy, war or war-like
action (whether actual, impending or expected and whether de jure or
de facto), arrest or other restraint of governmental (civil or
military) blockades, insurrections, riots, epidemics, landslides,
lightning, earthquakes, fires, hurricanes, storms, floods, washouts,
sink holes, civil disturbances, explosions, breakage or accident to
equipment or machinery, confiscation or seizure by any government of
public authority, nuclear reaction or radiation, radioactive
contamination or other causes, whether of the kind herein enumerated
or otherwise, that are not reasonably within the control of the party
claiming the right to delay performance on account of such occurrence.
18. Multiple counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
19. Law Governing. This Agreement shall be construed and governed by the
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laws of the State of Texas, and all obligations hereunder shall be
deemed performable in Xxxxxx County, Texas.
20. Further Acts. The parties hereto shall do all other acts and things
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that may be reasonably necessary or proper, full or more fully, to
evidence, complete or perfect this Agreement, and to carry out the
intent of this Agreement.
21. Entire Agreement. This instrument contains the entire Agreement of the
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parties and may not be changed orally, but only by instrument in
writing signed by the party against whom enforcement of any waiver,
change, modification, extension or discharge is sought.
If the foregoing meets your approval, please sign and date the enclosed
copies of this letter in the space provided below, and return same to us as
soon as possible.
Very truly yours,
AURORA FINANCIAL SERVICES, L.L.C.
By: /s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx, President
Date Executed: 10/15/99
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This Letter Agreement is accepted and
agreed to this 20th day of October, 1999
XxxXxxx.Xxx, Inc.
By: /s/ Xxxx X. Xxxxxx XX
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Xxxx X Xxxxxx XX
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