EXHIBIT 10.10
[LETTERHEAD OF X.X. XXXXXXXX & CO., INC.]
May 18, 1995
Xx. Xxxxx X. Xxxxxx
Chairman and
President
Franklin Telecommunications Corp.
000 Xxxxxxxxx Xxxx
Xxxxxxxx Xxxxxxx, XX 00000
Dear Xx. Xxxxxx:
THIS AGREEMENT (the "AGREEMENT") is made as of May 18, 1995 between
Franklin Telecommunications Corp. -- NASDAQ Symbol: FTEL ("Franklin") and X.X.
Xxxxxxxx & Co., Inc. ("XXXXXXXX").
In consideration of the mutual covenants contained herein and intending
to be legally bound thereby, FRANKLIN and XXXXXXXX hereby agree as follows:
1. XXXXXXXX will perform investment banking services for FRANKLIN on the
terms set forth below for a period four years from the date hereof. If both
parties, FRANKLIN and XXXXXXXX, mutually agree, this agreement may be extended
for an additional two years. Such services will be performed on a best efforts
basis and will include, without limitation, assistance to FRANKLIN in mergers,
acquisitions, and internal capital structuring and the placement of new debt and
equity issues of FRANKLIN, all with the objective of accomplishing FRANKLIN's
business and financial goals. In each instance, XXXXXXXX shall endeavor, subject
to market conditions, to assist FRANKLIN in identifying corporate candidates for
mergers and acquisitions and sources of private and institutional funds;
to provide planning, structuring, strategic and other advisory services to
FRANKLIN; and to assist in negotiations on behalf of FRANKLIN. In each instance,
XXXXXXXX will render such services as to which FRANKLIN and XXXXXXXX mutually
agree and XXXXXXXX will exert its best efforts to accomplish the goals agreed to
by XXXXXXXX and XXXXXXXX.
2. In connection with the performance of this AGREEMENT, XXXXXXXX and
FRANKLIN shall comply with all applicable laws and regulations, including,
without limitation, those of the National Association of Securities Dealers,
Inc. and the Securities and Exchange Commission.
Franklin Telecommunications Corp.
May 18, 1995
Page Two
3. Your company is aware that Mr. Xxxxxx Xxxxxxx is a principal of our
firm and had visited your offices in Xxxxxxxx Xxxxxxx, Xxxxxxxxxx during the
month of November in 1994.
4. In consideration of the services previously rendered and to be
rendered by XXXXXXXX hereunder, XXXXXXXX is hereby granted Warrants to purchase
a total of 200,000 Shares of Common Stock with an exercise price of $1.35 per
Warrant with demand and piggy back registration rights after 24 months from the
date of this AGREEMENT. These Warrants shall be vested as follows: 1/2 of the
Warrants upon signing this AGREEMENT, and the balance of the Warrants 12 months
thereafter. These Warrants and/or Underlying shares may be sold anytime after
two years and for a period of four years from the date of this AGREEMENT.
5. During the period of the exercise, as defined in paragraph four, the
holders of at least 51% of the Shares of Common Stock and Warrants constituting
the TOTAL XXXXXXXX EQUITY may demand, on one occasion only (but not within 180
days of an underwritten public offering), at XXXXXXXX'x expense, including all
expenses incurred by FRANKLIN (auditing, legal fees, etc.) agreed to by FRANKLIN
and XXXXXXXX within reason, for the XXXXXXXX'x shares of Common Stock only,
FRANKLIN shall promptly file a Registration Statement under the Securities Act
of 1933, as amended ("ACT"), to permit a public offering of the XXXXXXXX
Warrants and the shares of Common Stock issued and issuable pursuant to exercise
of the XXXXXXXX Warrants (the "XXXXXXXX SHARES"). Additionally, if FRANKLIN,
during the period of the exercise, as defined in paragraph four, files a
Registration Statement covering the sale of any of FRANKLIN Common Stock then
FRANKLIN, on each such occasion, at the request of the holders of at least 51%
of the Shares of Common Stock and Warrants constituting the TOTAL XXXXXXXX
EQUITY, shall include in any such Registration Statement, at FRANKLIN's expense,
the XXXXXXXX SHARES, provided that, if the sale of Common Stock by FRANKLIN is
being made through an underwriter and the underwriter objects to inclusion of
the XXXXXXXX SHARES of Common Stock in the Registration Statement, the XXXXXXXX
SHARES of Common Stock shall not be so included.
6. This AGREEMENT constitutes the entire Warrant Agreement between the
parties and when a copy is presented to FRANKLIN's transfer agent, together with
a certified check and a request that all or part of the XXXXXXXX Warrants be
exercised, the certificates for the requested number of shares of Common Stock
will be promptly issued.
Franklin Telecommunications Corp.
May 18, 1995
Page Three
7. FRANKLIN agrees to indemnify and hold XXXXXXXX and its associates
harmless from and against any and all losses, claims, damages, liabilities,
costs or expenses arising out of XXXXXXXX entering into or rendering services
under this AGREEMENT except for any losses, claims, damages, liabilities, costs
or expenses resulting from any violation by XXXXXXXX of applicable laws and
regulations including, without limitation, those of the National Association of
Securities Dealers, Inc. and the Securities and Exchange Commission or any act
of XXXXXXXX involving intentional misconduct.
8. XXXXXXXX agrees to indemnify and hold FRANKLIN and its associates
harmless from and against any all losses, claims, damages, liabilities, costs or
expenses resulting from any violation by XXXXXXXX of applicable laws and
regulations including, without limitation, those of the National Association of
Securities Dealers, Inc. and the Securities and Exchange Commission or any act
of FRANKLIN involving intentional misconduct.
9. Nothing contained in this AGREEMENT shall be construed to constitute
XXXXXXXX as a partner, employee, or agent of FRANKLIN; nor shall either party
have any authority to bind the other in any respect, it being intended that each
shall remain an independent contractor.
10. This AGREEMENT may not be assigned by either party hereto, shall be
interpreted in accordance with the laws of the State of New York, and shall be
binding upon the successors of the parties.
11. If any paragraph, sentence, clause of phrase of this Agreement is
for any reason declared to be illegal, invalid, unconstitutional, void or
unenforceable, all other paragraphs, sentences, clauses or phrases hereof not so
held shall be and remain in full force and effect.
12. None of the terms of this AGREEMENT shall be deemed to be waived or
modified except by an express agreement in writing signed by the party against
whom enforcement of such waiver or modification is sought. The failure of either
party at any time to require performance by the other party of any provision
hereof shall in no way effect the full right to require such performance at any
time thereafter. Nor shall the waiver by either party of a breach of any
provision hereof be taken or held to be a waiver of any succeeding breach of
such provision or as a waiver of the provision itself.
Franklin Telecommunications Corp.
May 18, 1995
Page Four
13. Any dispute, claim or controversy arising out of or relating to this
AGREEMENT, or the breach thereof, shall be settled by arbitration in New York
City, in accordance with the Commercial Arbitration Rules of the American
Arbitration Association. The parties hereto agree that they will abide by and
perform any award rendered by the arbitrator(s) and that judgment upon any such
award may be entered in any Court, state, or federal, having jurisdiction over
the party against whom the judgment is being entered. Any arbitration demand,
summons, complaint, other process, notice of motion or other application to an
arbitration panel, Court or Judge, and any arbitration award or judgment may be
served upon any party hereto by registered or certified mail, or by personal
service, provided a reasonable time for appearance or answer is allowed.
14. For purposes of compliance with laws pertaining to potential inside
information being distributed unauthorized to anyone, all communications
regarding the Company's confidential information should only be directed to
Xxxxxx X. Xxxxxxxx, Chairman, Xxxxxxx Xxxxxxxxx, President and Xxxxxxx Xxxxxx,
Senior Vice President, Compliance. If information is being faxed, our
confidential compliance fax number is 0 (000) 000-0000 for communication use.
IN WITNESS WHEREOF, the parities hereto have executed this AGREEMENT as of the
day and year first above written.
X.X. XXXXXXXX & CO., INC FRANKLIN TELECOMMUNICATIONS CORP.
By: /s/ XXXXXXX XXXXXXXXX By: /s/ XXXXX X. XXXXXX
---------------------- --------------------
Xxxxxxx Xxxxxxxxx Xxxxx X. Xxxxxx
President Chairman
President
[LETTERHEAD OF X.X. XXXXXXXX & CO., INC]
AMENDMENT
This is an amendment to our original investment banking contract dated May 18,
1995. Your board of directors has approved the increasing of our investment
banking contract from 200,000 warrants to 600,000 warrants at a price of $1.35
per warrant.
Please sign below indicating your agreement to the above.
Sincerely,
X.X. XXXXXXXX & CO., INC Franklin Telecommunications Corp.
/s/ XXXXXXX XXXXXXXXX /s/ XXXXX X. XXXXXX
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Xxxxxxx Xxxxxxxxx Xx. Xxxxx X. Xxxxxx
President Chairman and President
SWORN AND SUBSCRIBED before me this ___ day of ________________ 1996.
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Notary Public
My Commission Expires:
