EXHIBIT 4.6
[BRYANT PARK CAPITAL LOGO]
CONFIDENTIAL
March 1, 2004
Xenonics, Inc.
0000 Xxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Ladies and Gentlemen:
This letter agreement confirms that Xenonics, Inc. (together with its
subsidiaries and affiliates "the Company") has engaged Bryant Park Capital, Inc.
("BPC") to act as its exclusive financial advisor and consultant with regard to
possible capital raising transactions. The engagement shall be considered
effective as of today, shall be for an initial term of 180 days, and may be
terminated by BPC or the Company upon 30 days written notice after 90 days from
the date hereof.
1) SERVICES: BPC agrees to provide the Company with the following services:
a) Assist in the development and presentation of the company's business
plan and strategy;
b) Assist in the development and presentation of any financial analysis
or financial models, including comparable company analysis;
c) Assist in the management, coordination and negotiations of any fund
raising activities including the development of a list of potential
underwriting participants, development of selection criteria of
syndicate members, coordination of potential syndicate members and
positioning of the company within the financial markets. The goal of
these activities is to create a more liquid, widely distributed and
analyst covered stock.
d) Other services as may be agreed to from time to time.
2) FEES: BPC shall be entitled to and the Company shall pay to BPC fees as
follows: (i) an initial engagement fee of $50,000 or 20,000 shares of
stock (at the Company's option) upon signature of this letter agreement;
and (ii) a fee for each month of the term of this engagement of $10,000
payable monthly in advance beginning March 1, 2004. The initial retainer
and the first 4 months of the monthly retainer shall be credited against
Transaction Fees, as defined below, payable by the Company to BPC.
000 XXXXX XXXXXX - 00XX XXXXX - XXX XXXX, XX - 00000
PHONE: (000) 000-0000 - FAX: (000) 000-0000
CAPITAL INFUSION TRANSACTION
If the Company enters into a Capital Infusion Transaction (as defined
below) during the term of the engagement, or enters into a Capital
Infusion Transaction during the 12 months following the termination of its
engagement with BPC with any party which has been identified by BPC to the
Company or concerning which BPC has performed meaningful advisory services
at the Company's request, then the Company shall pay, or shall cause to be
paid, to BPC a transaction fee in cash and/or warrants, according to terms
defined below and calculated according to the following amounts and
percentages (Table A).
TABLE A
AMOUNT RAISED
PUBLIC OFFERING ADVISORY SERVICES Cash Portion:
Completion of Public Stock Offering:
2.5% of money raised in aggregate
(including exercise of greenshoe) of
which it is anticipated that the Company
will pay 1.5% and the underwriters will
pay 1% (pro-rata between cash and
warrants).
CAPITAL INFUSION (including 7% of money raised.
common stock, preferred stock and
convertible debt) in the event the Warrant Portion:
Company decides to raise capital Warrants to buy stock at the price such
outside of a public offering of securities were sold to investors in an
securities. amount equal to 4.0% of the value of the
Capital Infusion Transaction
The Capital Infusion Transaction Fee shall be referred to as a "Transaction
Fee". Any Capital Infusion Transaction conducted by the Company shall be
referred to as a Transaction.
The Transaction Fee shall be payable at any closings of the Transaction, except
that to the extent the Consideration in respect thereof may be increased by
contingent payments, the portion of BPC's fees relating thereto shall be
calculated and paid as and when such contingent payments are made. All stock
and warrants paid to BPC as consideration for a Capital Infusion Transaction
will carry Standard Anti-Dilution Protection (as defined below).
In the event BPC successfully completes a Capital Infusion Transaction on behalf
of the Company during the engagement period, BPC shall have an exclusive right
of first refusal for a period of 12 months following the closing of such Capital
Infusion Transaction to provide similar services to those described herein. BPC
shall have 30 days, from receipt in writing provided by the Company of a bona
fide offer from a third party, to accept or decline providing the Company with
similar services on at least comparable terms.
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3) DEFINITIONS:
"Standard Anti-Dilution Protection" means if at any time the Company shall
(i) pay a dividend or make a distribution on its shares of capital stock
or Securities ("Shares") in Shares (other than cash dividends or
distributions out of surplus or earnings); (ii) subdivide, reclassify or
recapitalize its outstanding Shares into a greater number of Shares; or
(iii) combine, reclassify or recapitalize its outstanding Shares into a
smaller number of Shares, the exercise price of any warrant, that is
exercisable into Shares ("Warrant Shares"), in effect at the time of the
record date of such subdivision, combination, reclassification or
recapitalization shall be proportionately adjusted, and so that the
warrant .holder shall be entitled to receive the aggregate number and kind
of Shares which, if the warrant had been exercised in full immediately
prior to such time, he would have owned upon such exercise and been
entitled to receive upon such dividend, subdivision, combination,
reclassification or recapitalization, whenever the exercise price payable
upon exercise of such warrant is adjusted pursuant to this paragraph, the
number of Warrant Shares shall simultaneously be adjusted by multiplying
the number of Warrant Shares initially issuable upon exercise of each
warrant by the exercise price in effect on the date thereof and dividing
the product so obtained by the exercise price, as adjusted. Such
adjustment shall be made successively whenever any event such as described
in this paragraph shall occur. The form of warrant need not be changed
because of any adjustments in the exercise price or the number or kind of
the Warrant Shares, however accurate adjustments shall be kept in the
official records of the Company.
"Capital Infusion Transaction" means any Transaction (or series of
transactions) which involves (a) a third party identified by BPC to the
Company, or concerning which BPC has performed meaningful advisory
services hereunder, and (b) which, directly or indirectly, results in (i)
the purchase or sale of newly issued debt or equity securities of the
Company, a subsidiary or a related affiliate or (ii) a firm commitment,
that resulted from a request by the Company for BPC to pursue such a
commitment, from BPC, its affiliates, or a third party to purchase or sell
newly issued debt or equity securities of the Company, a subsidiary or a
related affiliate, including, but not limited to, committed but undrawn
credit facilities.
"Warrants" paid as a fee in a Transaction are subject to expire on the
tenth anniversary of the closing of the Capital Infusion Transaction and
have Standard Anti-Dilution Protection, registration rights that are
exercisable only in the event the Company has publicly traded shares and
is qualified pursuant to SEC guidelines to file an S-3 registration
statement, piggy-back registration rights, in the event the Company has
publicly traded shares, and cashless exercise provisions and entitle BPC
to purchase the Company's securities identical to the type and price of
the securities sold by the Company at the time of the Capital Infusion
Transaction.
4) EXPENSES: In addition to the fees described above and whether or not a
Transaction occurs, the Company shall reimburse BPC for its reasonable
out-of-pocket expenses incurred in connection with BPC's services
hereunder or the subject matter hereof, including, without
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limitation, legal (not including legal fees incurred by BPC in connection
with the negotiation and preparation of this Agreement), accounting,
computer and information databases, due diligence, background
investigations, "Blue Sky" filings, marketing, "road show", travel and
entertainment, printing and mailing, any escrow fees, and internal
administrative expenses. Reimbursement by the Company of BPC's documented
out-of-pocket expenses associated with providing its services hereunder
will occur on a regular monthly basis. In the event that BPC's monthly
out-of-pocket expenses exceed $2,500 in any month following the execution
of this Agreement, BPC will be required to get approval in advance from
the Company for any additional reimbursable expenses. The Company agrees
to reimburse BPC within 15 days of receipt of reimbursable expense
invoices. BPC recognizes that the Company has limited resources to fund
expenses beyond these levels and agrees to work with the Company to
minimize such expenses.
5) INDEMNIFICATION: The Company agrees to indemnify BPC against all
liabilities under the Securities Act or otherwise, as provided for in
Schedule A attached hereto, which Schedule is an integral part of this
agreement and is incorporated herein by reference.
6) CONFLICTS; INDEPENDENT CONTRACTOR: The Company acknowledges that BPC
and its affiliates may have and may continue to have investment banking
and other relationships with parties other than the Company, pursuant to
which BPC may acquire information of interest to the Company. BPC shall
have no obligation to disclose such information to the Company or to use
such information in connection with any contemplated Transaction.
The relationship between BPC and the Company shall be that of advisor and
client. BPC is an independent contractor and this agreement shall not be
deemed in any way to establish a joint venture between BPC and the Company
or as creating a partnership or similar relationship. BPC will provide its
financial advice, written or oral, exclusively for the information of the
Company's Board of Directors and senior management, who will make all
decisions regarding whether to engage in any Transaction.
7) ENTIRE AGREEMENT; AMENDMENTS; SURVIVAL: This agreement constitutes
the entire agreement of the parties with respect to BPC's engagement and
supersedes all prior negotiations and understandings of the parties hereto
with respect to the subject matter hereof. This agreement may not be
amended or modified except in writing signed by each party hereto. The
provisions of Sections 2, 3,4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 shall
survive any termination of BPC's engagement hereunder. This agreement
shall be binding upon, and inure solely to the benefit of, BPC and the
Company, and all of their respective heirs, executors, administrators, and
successors. BPC may engage its own sub-placement agents, independent
contractors and/or consultants to assist BPC in conducting the
Transaction. BPC shall have the right to place advertisements or other
public announcements in financial and other newspapers and journals at its
own expense describing its services to the Company hereunder. Any such
advertisement of public announcement shall be subject to the approval of
the Company, which approval shall not be unreasonably withheld; provided,
however, that following the closing of a Transaction, BPC shall be
entitled to describe its services to the Company in its own newsletter or
in other public relations and promotional materials, without the approval
of the Company.
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8) REPRESENTATIONS AND WARRANTIES; ACCURACY OF INFORMATION; INTERESTS OF
OTHERS: The Company will furnish to BPC any information concerning the
Company, including its subsidiaries and affiliates, that BPC reasonably
deems appropriate, and will provide BPC access to its officers, directors,
accountants, counsel and other advisors. All such information concerning
the Company is and will be true and accurate in all material respects, and
does not and will not as of its date, and will not as supplemented or
amended as of the date of the closing of any Transaction, contain any
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in light
of the circumstances under which such statements are or were made. The
Company acknowledges and agrees that BPC will be using and relying upon
such information supplied by the Company and other publicly available
information concerning the Company, without any independent investigation
or verification thereof or any independent appraisal by BPC of the Company
or its business or assets. The Company further represents and warrants
that no broker, representative or other person has an interest in
compensation due BPC hereunder.
9) CONFIDENTIALITY: Except as otherwise required by law, the terms of this
Agreement shall not be disclosed to any third party, with the exception of
potential investors in the Transaction as part of their due diligence
efforts, without the prior written consent of both parties to this
Agreement. BPC shall keep confidential and not disclose any non-public
information provided to it by or on behalf of the Company or by any
third-party, in relation to any of the services provided or to be provided
by it to the Company, except that it may disclose any such information to
its advisors (which persons shall be bound by similar confidentiality
obligations and for which BPC shall accept full responsibility in
compliance with this Section 9) or as required by law or with the prior
consent of the Company. The restrictions in the preceding sentence shall
not apply to information that becomes publicly available through no fault
of BPC or information that BPC may be required by law to disclose.
10) ADVERTISING: BPC shall have the right to place advertisements or other
public announcements in financial and other newspapers and journals at its
own expense describing its services to the Company hereunder. Any such
advertisement of public announcement shall be subject to the approval of
the Company, which approval shall not be unreasonably withheld; provided,
however, that following the closing of a Transaction, BPC shall be
entitled to describe its services to the Company in its own newsletter or
in other public relations and promotional materials, without the approval
of the Company.
11) USA PATRIOT ACT NOTICE: The Company acknowledges that in order for BPC
to comply with the requirements under Title III of the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism Act of 2001 ("USA Patriot Act") (Public Law
107-56), the Company must provide BPC with certain information or
supporting documentation (collectively "Documentation") at the time of
execution of this agreement. BPC is required by the USA Patriot Act to
verify and record any Documentation provided by the Company to validate
the Company's identity. Documentation that may be requested from the
Company may include, but is not limited to, a Federal Employer
5
Identification Number (FEIN), a Certificate of Good Standing to validate
the Company's corporate existence, a Certificate of Incumbency to
authenticate the management of the Company, and other government issued
certified documents to validate the Company's authorization to conduct
business.
12) HEADINGS: Headings are provided solely for convenience and are not
intended to be a part of this agreement.
13) GOVERNING LAW: This Agreement shall be governed by, and construed in
accordance with, the law of the State of New York without giving effect to
principles governing conflicts of law. If any provision of this agreement
or the application thereof to any person or circumstance shall be
determined to be invalid or unenforceable, the remaining provisions of the
agreement or the application of such provisions to persons or
circumstances other than those to which it is held invalid or
unenforceable shall not be affected thereby and shall be valid and
enforceable to the fullest extent permitted by law.
If the foregoing is in accordance with your understanding, kindly sign
where indicated below and return an executed copy to us.
BRYANT PARK CAPITAL, INC.
/s/ Xxx Xxxxxxxx
----------------------------
By: Xxx Xxxxxxxx
Title: President
Agreed & Accepted:
XENONICS, INC.
By:/s/ Xxxx Xxxxxxxx
-------------------------------
Name: Xxxx Xxxxxxxx
Title: Chairman /CEO
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SCHEDULE A
INDEMNIFICATION AND CONTRIBUTION
This Schedule A is a part of and ,is incorporated into that certain letter
agreement (together with this Schedule A, the "Agreement"), dated 3-1-04 by and
between the Company and BPC, Terms not otherwise defined herein have the meaning
ascribed to them in the main body of the Agreement.
1. By the Company. The Company agrees to indemnify and hold harmless
BPC and its Affiliates, and the respective directors, officers,
agents, consultants and employees of BPC and its Affiliates (BPC and
each such entity of person, a "BPC Indemnified Person") from and
against any losses, claims, damages, judgments, assessments, costs,
legal fees and other liabilities (collectively "Liabilities"), and
will reimburse each BPC Indemnified Person for all fees and expenses
(including the reasonable fees and expenses of counsel)
(collectively, "Expenses") as they are incurred in investigating,
preparing, pursuing or defending any claim, action, proceeding or
investigation, whether or not in connection with pending or
threatened litigation, regulatory proceeding or arbitration and
whether or not any BPC Indemnified Person is a party (collectively,
"Actions"), arising out of or in connection with advice or services
rendered or to be rendered by any BPC Indemnified Person pursuant to
this Agreement, the Transactions contemplated hereby (including but
not limited to any untrue statement of a material fact on the part
of the Company in connection with the Transaction or any related
Memorandum (the "Memorandum") or the omission to state in the
Memorandum a material fact required to be stated therein or
necessary to make the statements therein, in light of circumstances
under which they were made, not misleading) or any BPC Indemnified
Person's actions or inactions in connection with any such advice,
actions, inactions, services or Transactions; provided that the
Company will not be responsible and shall be reimbursed by BPC for
any Liabilities or Expenses of any BPC Indemnified Person that are
determined by a judgment of a court of competent jurisdiction which
is no longer subject to appeal or further review to have resulted
from such BPC Indemnified Person's gross negligence in connection
with any of the advice, actions, inactions, services or transactions
referred to above, or to the extent that any such Liabilities or
Expenses arises out of or are based upon an untrue statement of a
material fact or omission made in reliance upon and in conformity
with written information furnished to the Company by BPC
specifically for use in the preparation of the Memorandum. The
Company also agrees to reimburse each BPC Indemnified Person tor all
Expenses as they are incurred in connection with enforcing such BPC
Indemnified Person's rights under this Agreement (including, without
limitation, its rights under this Schedule A).
2. By BPC. BPC agrees to indemnify and hold harmless the Company and
each officer, director, employee, agent or person, if any, who
controls the Company within the meaning of the Securities Act and
the Exchange Act (the Company and each such person, a "Company
Indemnified Person"), against any and all Liabilities and
000 XXXXX XXXXXX - 00XX XXXXX - XXX XXXX, XX - 00000
PHONE: (000) 000-0000 - FAX: (000) 000-0000
Expenses, to which any Company Indemnified Person may become
subject, under the Securities Act or otherwise, insofar as such
Liabilities (or actions in respect thereof), arise out of or are
based directly or indirectly upon BPC's gross negligence in
performing its services, or BPC's intentional failure to comply with
any applicable SEC regulations.
3. Procedure. Upon receipt by a BPC Indemnified Person or a Company
Indemnified Person (either an "Indemnified Person") of actual notice
of an Action against such Indemnified Person with respect to which
indemnity may be sought under this Agreement, such Indemnified
Person shall promptly notify the Company or BPC as the case may be
(an "Indemnifying Party") in writing; provided that failure so to
notify such Indemnifying Party shall not relieve such Indemnifying
Party from any liability which such Indemnifying Party may have on
account of this indemnity or otherwise, except to the extent such
Indemnifying Party shall have been materially prejudiced by such
failure. The Indemnifying Party shall, if requested by the
Indemnified Person, assume the defense of any such Action including
the retention of counsel reasonably satisfactory to the Indemnified
Person. Any Indemnified Person shall have the right to employ
separate counsel in any such Action and participate in the defense
thereof, but the fees and expenses of such counsel shall be at the
expense of such Indemnified Person, unless: (i) the Indemnifying
Party has failed promptly to assume the defense and employ counsel
or (ii) the named parties to any such Action (including any
impleaded parties) include both such Indemnified Person and the
Indemnifying Party, and such Indemnified Person Shall have been
advised by counsel that there may be one or more legal defenses
available to it which are different from or in addition to those
available to the Indemnifying Party; provided that the Indemnifying
Party shall not in such event be responsible hereunder for the fees
and expenses of more than one firm of separate counsel in connection
with any Action in the same jurisdiction, in addition to any local
counsel The Indemnifying Party shall not be liable for any
settlement of any Action effected without its written consent, which
consent shall not be unreasonably withheld. In addition, an
Indemnifying Party will not, without prior written consent of the
applicable Indemnified Person, settle, compromise or consent to the
entry of any judgment in or otherwise seek to terminate any pending
or threatened Action in respect of which indemnification or
contribution may be sought hereunder (whether or not any Indemnified
Person is a party thereto) unless such settlement, compromise,
consent or termination includes an unconditional release of each
Indemnified Person from all Liabilities arising out of such Action.
4. Contribution. In the event that the foregoing indemnity is
unavailable to a BPC Indemnified Person other than in accordance
with this Agreement, the Company shall contribute to the Liabilities
and Expenses paid or payable by such BPC Indemnified Person in such
proportion as is appropriate to reflect (i) the relative benefits to
the Company and, its shareholders, on the one hand, and to BPC, on
the other hand, of the matters contemplated by this Agreement or
(ii) if the allocation provided by the immediately preceding clause
is not permitted by applicable law, not only such
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relative benefits but also the relative fault of the Company, on the
one hand, and BPC, on the other hand, in connection with the matters
as to which such Liabilities or Expenses relate, as well as any
other relevant equitable considerations. For purposes of this
paragraph, the relative benefits to the Company and its
shareholders, on the one hand, and to BPC, on the other hand, of the
matters contemplated by this Agreement shall be deemed to be in the
same proportion as (a) the total value paid or contemplated to be
paid or received or contemplated to be received by the Company or
the Company's shareholders, as the case may be, in the Transaction
or Transactions that are within the scope of this Agreement, whether
or not any such Transaction is consummated, bears to (b) the fees
paid to BPC under this Agreement. The relative fault of the Company
on the one hand, and the BPC on the other hand, will be determined
with reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission to state a
material fact is relative to information supplied by the Company or
BPC, and with reference to each of the Company's and BBC's relative
intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission. The Company and BPC agree
that it would not be just and equitable if contribution pursuant to
this paragraph were determined by pro rata allocation or by any
other method of allocation that does not take into account the
equitable considerations referred to in this paragraph.
5. Other Liabilities. The Company also agrees that no BPC Indemnified
Person shall have any liability (whether direct or indirect, in
contract or tort or otherwise) to the Company for or in connection
with advice or services rendered or to be rendered by any BPC
Indemnified Person pursuant to this Agreement, the Transactions
contemplated hereby or any such BPC Indemnified Person's actions or
inactions in connection with any such advice, services or
Transactions except for Liabilities (and related Expenses) of the
Company that are determined by a judgment of a court of competent
jurisdiction which is no longer subject to appeal or further review
to be covered by this Agreement.
6. Effective. The reimbursement, indemnity and contribution obligations
of the Company and BPC set forth herein shall apply to any
modification of this Agreement and shall remain in full force and
effect regardless of any termination of, or the completion of any
Indemnified Person's services under or in connection with, this
Agreement.
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[BRYANT PARK CAPITAL LOGO]
CONFIDENTIAL
April 12, 2004
Board of Directors
c/o Xxxx Xxxxxxxx
Xenonics, Inc.
0000 Xxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxxx, CEO
RE: Amendment 1 (the "Amendment") to the agreement set forth in the
letter agreement, dated March 1, 2004
Dear Xxxx:
Reference is made to the agreement (the "Agreement"), set forth in the
letter agreement, dated March 1, 2004 (the "March 1st Letter"), by and
between Bryant Park Capital, Inc. ("BPC") and Xenonics, Inc. (together
with its subsidiaries and affiliate, the "Company"). BPC and the Company
have mutually agreed to amend and modify the Agreement as set forth below.
All terms used herein and not defined herein shall have the meanings
ascribed to them in the March 1st Letter.
PIPE TRANSACTION
The parties agree to delete the CAPITAL INFUSION section of TABLE A of the
March 1st Letter in its entirety and replace it with the following, which
shall hereby become part of the Agreement;
CAPITAL INFUSION 8.0% of money raised.
(including common
stock, preferred Warrant Portion:
stock and Warrants to buy stock at the price such
convertible debt) securities were sold to investors in an
raised via a Private amount equal to 8.0% of the value of the
Investment in Public Capital Infusion Transaction
Equity ("PIPE")
transaction
000 XXXXX XXXXXX - 00XX XXXXX - XXX XXXX, XX - 00000
PHONE: (000) 000-0000 - FAX: (000) 000-0000
Xenonics, Inc.
April 12, 2004
Page 2 of 3
MERGER OR ACQUISITION TRANSACTION
The parties agree that if the Company enters into discussions regarding an M&A
Transaction (as defined below) during the term of the Agreement and BPC provides
advisory services to the Company at its request in connection with such M&A
Transaction or has introduced such other party to the M&A Transaction to the
Company, or enters into an M&A Transaction during the 12 months following the
termination of the Agreement but was initiated during the term of this
agreement, then the Company shall pay, or shall cause to be paid, to BPC upon
the consummation of such M&A Transaction, a transaction fee (the "M&A
Transaction Fee") payable in cash calculated according to the following amounts
and percentages (Table B).
TABLE B
PERCENTAGE TO BE APPLIED
TO PORTION OF CONSIDERATION IN
CONSIDERATION (AS DEFINED BELOW) IN THE M&A TRANSACTION THE M&A TRANSACTION
------------------------------------------------------- ------------------------------
Aggregate Consideration 2.5%
The M&A Transaction Fee and Capital Infusion Transaction Fee shall individually
be referred to as a "Transaction Fee" and together the "Transaction Fees." Any
M&A Transaction or Capital Infusion Transaction conducted by the Company shall
be individually referred to as a Transaction.
DEFINITIONS
"M&A Transaction" means one or more related Transactions (a) is not a Capital
Infusion Transaction (as defined in the March 1st Letter) and (b) which,
directly or indirectly results in (i) the acquisition by the Company of all or
any part of the existing capital stock of a third party or all or any part of
the assets of such third party (or any securities convertible into or
exchangeable for or other rights to acquire all or any part of such capital
stock or assets) or (ii) the acquisition by a third party of all or any part of
the existing capital stock of the Company or all or any part of the assets of
the Company (including any securities convertible into or exchangeable for or
other rights to acquire all or any part of such capital stock or assets),
including in each such case, without limitation, any sale or exchange of capital
stock or assets (including cash and other liquid assets), any merger or
consolidation (including any such transaction in which the third party is the
surviving entity) or any similar transaction or (iii) any partnership, joint or
collaborative venture, strategic alliance or similar transaction.
"Consideration" in a Transaction means, with respect to such Transaction, the
total amount paid or payable (whether in cash, securities, employment
contracts, to the extent the compensation and benefit under such employment
contracts are materially in excess of what is reasonable for the services to be
performed thereunder, "earn-out" agreements, seller's financing or other
property), directly or indirectly, upon the consummation of or otherwise in
connection with such Transaction, together with (i) all amounts paid or payable
in cancellation of stock options or other rights, (ii) the aggregate principal
amount of long-term indebtedness of the acquired company that, as a result of
such Transaction, becomes indebtedness of the acquiring company and (iii) the
Xenonics, Inc.
April 12, 2004
Page 3 of 3
aggregate redemption price or liquidation preference of any preferred stock of
the acquired company that, as a result of such Transaction, is redeemed or
becomes preferred stock of the acquiring company, as the case may be. For
purposes of this definition, long-term indebtedness shall be determined both as
to classification and amount on a consolidated basis in accordance with
generally accepted accounting principles. In the event that the Consideration
received in a Transaction is paid or payable in whole or in part in the form of
securities or other property, the value of such securities or other property for
purposes of calculating the Consideration for such Transaction shall be (i) the
closing bid price, in the case of publicly traded securities and (ii) the fair
market value as the parties hereto shall mutually agree in the case of contracts
or unquoted securities, in each case calculated as of the business day
immediately preceding the consummation of the Transaction.
Except as amended by this Amendment, all of the terms, covenants and conditions
contained in the Agreement are hereby ratified and confirmed and shall remain in
full force and effect.
This Amendment may be executed in two or more counterparts, and by the different
parties hereto in separate counterparts, including by facsimile, each of which
when executed shall be deemed to be an original but all of which taken together
shall constitute one and the same agreement.
Sincerely,
BRYANT PARK CAPITAL, INC.
By:/s/ Xxxx Xxxxxxxx Date: 4/16
--------------------
Name: Xxxx Xxxxxxxx
Title: Chief Executive Officer
Accepted and Agreed:
XENONICS,INC.
By:/s/ Xxxx Xxxxxxxx Date: 4/16/04
-------------------------
Name: Xxxx Xxxxxxxx
Title: Chief Executive Officer
[BRYANT PARK CAPITAL LOGO]
CONFIDENTIAL
May 18, 2004
Xxxx Xxxxxxxx
Chairman and CEO
Xenonics Holdings, Inc.
0000 Xxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxxx, CEO
RE: Second Amendment (the "Amendment") to the agreement set forth in the letter
agreement, dated March 1, 2004
Dear Xxxx:
Reference is made to the agreement (the "Agreement") set forth in the
letter agreement, dated March 1, 2004 (the "March 1st Letter"), by and
between Bryant Park Capital, Inc. ("BPC") and Xenonics Holdings, Inc.
(together with its subsidiaries and affiliates, the "Company"). BPC and
the Company have mutually agreed to amend and modify the Agreement as set
forth below. All terms used herein and not defined herein shall have the
meanings ascribed to them in the March 1st Letter.
STRATEGIC ALLIANCE
If the Company enters into a Strategic Alliance Transaction (as defined
below) during the term of the engagement, or enters into a Strategic
Alliance Transaction during the 18 months following the termination of the
engagement with BPC with any party which has been identified by BPC to the
Company or concerning which BPC has performed advisory services at the
Company's request, then the Company shall pay, or shall cause to be paid,
to BPC a transaction fee in cash equal to 2.5% of the value of the
Strategic Alliance Transaction (the "Strategic Alliance Transaction Fee")
during the term of the Strategic Alliance.
000 XXXXX XXX., 00XX XXXXX
XXX XXXX, XXX XXXX 00000
Member NASD/SIPC
Xenonics Holdings, Inc.
May 18, 2004
Page 2 of 3
DEFINITIONS
"Strategic Alliance Transaction" means any transaction (or series of
transactions), including a joint venture, partnership, sales and marketing
agreement or any similar transaction, whether or not including an
investment, which involves (a) a third party identified by BPC to the
Company, or concerning which BPC performed advisory services hereunder,
and b) which, directly or indirectly constitutes a new business
opportunity.
Except as amended by this Second Amendment, all of the terms, covenants and
conditions contained in the Agreement are hereby ratified and confirmed and
shall remain in full force and effect.
This Second Amendment may be executed in two or more counterparts, and by the
different parties hereto in separate counterparts, including by facsimile, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
Sincerely,
BRYANT PARK CAPITAL, INC.
By: /s/ Xxxx Xxxxxxxx Date: 5/18
----------------------------
Name: Xxxx Xxxxxxxx
Title: Chief Executive Officer
Accepted and Agreed:
XENONICS, INC.
By: /s/ Xxxx Xxxxxxxx Date: 5/18/04
----------------------
Name: Xxxx Xxxxxxxx
Title: Chief Executive Officer
