EXHIBIT 99.8
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July 17, 2008
Amended and restated as of September 8, 2008
STRICTLY CONFIDENTIAL
Metalink Ltd.
Xxxxx Xxxxxxxx Xxxx
Xxxxx 00000
Xxxxxx
ATTN: Yuval Ruhama, CFO
Dear Mr. Ruhama:
This amended and restated letter (the "Agreement") constitutes the
agreement between Metalink LTD (the "Company") and Xxxxxx & Xxxxxxx, LLC
("Xxxxxx") that Xxxxxx shall serve as the exclusive placement agent (the
"Services") for the Company, on a "best efforts" basis, in connection with the
proposed offer and placement (the "Offering") by the Company of securities of
the Company (the "Securities"). The terms of the Offering and the Securities
shall be mutually agreed upon by the Company and the investors and nothing
herein implies that Xxxxxx would have the power or authority to bind the Company
or an obligation for the Company to issue any Securities or complete the
Offering. The Company expressly acknowledges and agrees that Xxxxxx'x
obligations hereunder are on a reasonable best efforts basis only and that the
execution of this Agreement does not constitute a commitment by Xxxxxx to
purchase the Securities and does not ensure the successful placement of the
Securities or any portion thereof or the success of Xxxxxx with respect to
securing any other financing on behalf of the Company.
A. Fees and Expenses. In connection with the Services described above, the
Company shall pay to Xxxxxx the following compensation:
1. Placement Agent's Fee. The Company shall pay to Rodman a cash
placement fee (the "Placement Agent's Fee") equal to 7.5% of the aggregate
purchase price paid by each purchaser of Securities that are placed in the
Offering, provided, however, that the Placement Agent's Fee shall be equal
to 2% of the aggregate purchase price paid by each purchaser of Securities
that are placed in the Offering for those purchasers listed on Exhibit A
hereto (with a cap of $100,000 for such purchasers). The Placement Agent's
Fee shall be paid at the closing of the Offering (the "Closing") from the
gross proceeds of the Securities sold. For the avoidance of any doubt,
Xxxxxx shall not be entitled to any fee for purchases of Securities in the
Offering by an insider of the Company.
2. Intentionally Omitted.
3. Expenses. In addition to any fees payable to Xxxxxx hereunder, but
only if an Offering is consummated, the Company hereby agrees to reimburse
Xxxxxx for all reasonable travel and other out-of-pocket expenses incurred
in connection with Xxxxxx'x engagement, including the reasonable fees and
expenses of Xxxxxx'x counsel. Such reimbursement shall be limited to
$25,000 without prior written approval by the Company and shall be paid at
the Closing from the gross proceeds of the Securities sold.
B. Term and Termination of Engagement.
1. The term (the "Term") of Xxxxxx'x engagement will begin on the date
hereof and end on the earlier of the consummation of the Offering or 15
days after the receipt by either party hereto of written notice of
termination; provided that no such notice may be given by the Company for a
period of 30 days after the date hereof. Notwithstanding anything to the
contrary contained herein, the provisions concerning confidentiality,
indemnification, contribution and the Company's obligations to pay fees and
reimburse expenses contained herein will survive any expiration or
termination of this Agreement.
2. In the event that no financing is consummated hereunder and the
Company publicly announces any change of control or strategic investment in
the Company within 90 days of termination of this Agreement, the Company
shall pay Xxxxxx a fee of $50,000 if we are terminated 40 days after the
date hereof, $100,000 if we are terminated between 41-60 days from the date
hereof and $150,000 if we are terminated thereafter, such amount to be paid
upon the closing of any such change of control or strategic investment.
C. Fee Tail. Xxxxxx shall be entitled to a Placement Agent's, calculated in
the manner provided in Paragraph A, with respect to any subsequent public or
private offering or other financing or capital-raising transaction of any kind
("Subsequent Financing") to the extent that such financing or capital is
provided to the Company by investors whom Xxxxxx had introduced, directly or
indirectly, to the Company during the Term, if such Subsequent Financing is
consummated at any time within the 12-month period following the expiration or
termination of this Agreement (the "Tail Period"), provided that no such Fee
shall be due for Subsequent Financings with investors listed on Schedule A
hereto.
D. Use of Information. The Company will furnish Rodman such written
information as Xxxxxx reasonably requests in connection with the performance of
its services hereunder, but subject to the requirements of the law. The Company
understands, acknowledges and agrees that, in performing its services hereunder,
Xxxxxx will use and rely entirely upon such information as well as publicly
available information regarding the Company and other potential parties to an
Offering and that Xxxxxx does not assume responsibility for independent
verification of the accuracy or completeness of any information, whether
publicly available or otherwise furnished to it, concerning the Company or
otherwise relevant to an Offering, including, without limitation, any financial
information, forecasts or projections considered by Xxxxxx in connection with
the provision of its services.
E. Confidentiality. In the event of the consummation or public announcement
of any Offering, Xxxxxx shall have the right to disclose its participation in
such Offering, including, without limitation, the placement at its cost of
"tombstone" advertisements in financial and other newspapers and journals.
Xxxxxx agrees not to use any confidential information concerning the Company
provided to Xxxxxx by the Company for any purposes other than those contemplated
under this Agreement.
F. Securities Matters. The Company shall be responsible for any and all
compliance with the securities laws applicable to it, including Regulation D and
the Securities Act of 1933, and Rule 506 promulgated thereunder, and unless
otherwise agreed in writing, all state securities ("blue sky") laws. Xxxxxx
agrees to cooperate with counsel to the Company in that regard.
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G. Indemnity.
1. In connection with the Company's engagement of Xxxxxx as placement
agent, the Company hereby agrees to indemnify and hold harmless Xxxxxx and
its affiliates, and the respective controlling persons, directors,
officers, shareholders, agents and employees of any of the foregoing
(collectively the "Indemnified Persons"), from and against any and all
claims, actions, suits, proceedings (including those of shareholders),
damages, liabilities and expenses incurred by any of them (including the
reasonable fees and expenses of counsel), (collectively a "Claim"), that
are (A) related to or arise out of (i) any actions taken or omitted to be
taken (including any untrue statements made or any statements omitted to be
made) by the Company, or (ii) any actions taken or omitted to be taken by
any Indemnified Person in connection with the Company's engagement of
Xxxxxx, or (B) otherwise relate to or arise out of Xxxxxx'x activities on
the Company's behalf under Xxxxxx'x engagement, and the Company shall
reimburse any Indemnified Person for all expenses (including the reasonable
fees and expenses of counsel) incurred by such Indemnified Person in
connection with investigating, preparing or defending any such claim,
action, suit or proceeding, whether or not in connection with pending or
threatened litigation in which any Indemnified Person is a party. The
Company will not, however, be responsible for any Claim, that is finally
judicially determined to have resulted from the gross negligence or willful
misconduct of any person seeking indemnification for such Claim. The
Company further agrees that no Indemnified Person shall have any liability
to the Company for or in connection with the Company's engagement of Xxxxxx
except for any Claim incurred by the Company as a result of such
Indemnified Person's gross negligence or willful misconduct.
2. The Company further agrees that it will not, without the prior
written consent of Rodman, settle, compromise or consent to the entry of
any judgment in any pending or threatened Claim in respect of which
indemnification may be sought hereunder (whether or not any Indemnified
Person is an actual or potential party to such Claim), unless such
settlement, compromise or consent includes an unconditional, irrevocable
release of each Indemnified Person from any and all liability arising out
of such Claim.
3. Promptly upon receipt by an Indemnified Person of notice of any
complaint or the assertion or institution of any Claim with respect to
which indemnification is being sought hereunder, such Indemnified Person
shall notify the Company in writing of such complaint or of such assertion
or institution but failure to so notify the Company shall not relieve the
Company from any obligation it may have hereunder, except and only to the
extent such failure results in the forfeiture by the Company of substantial
rights and defenses. If the Company so elects or is requested by such
Indemnified Person, the Company will assume the defense of such Claim,
including the employment of counsel reasonably satisfactory to such
Indemnified Person and the payment of the fees and expenses of such
counsel. In the event, however, that legal counsel to such Indemnified
Person reasonably determines that having common counsel would present such
counsel with a conflict of interest or if the defendant in, or target of,
any such Claim, includes an Indemnified Person and the Company, and legal
counsel to such Indemnified Person reasonably concludes that there may be
legal defenses available to it or other Indemnified Persons different from
or in addition to those available to the Company, then such Indemnified
Person may employ its own separate counsel to represent or defend him, her
or it in any such Claim and the Company shall pay the reasonable fees and
expenses of such counsel. Notwithstanding anything herein to the contrary,
if the Company fails timely or diligently to defend, contest, or otherwise
protect against any Claim, the relevant Indemnified Party shall have the
right, but not the obligation, to defend, contest, compromise, settle,
assert crossclaims, or counterclaims or otherwise protect against the same,
and shall be fully indemnified by the Company therefor, including without
limitation, for the reasonable fees and expenses of its counsel and all
amounts paid as a result of such Claim or the compromise or settlement
thereof. In addition, with respect to any Claim in which the Company
assumes the defense, the Indemnified Person shall have the right to
participate in such Claim and to retain his, her or its own counsel
therefor at his, her or its own expense.
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4. The Company agrees that if any indemnity sought by an Indemnified
Person hereunder is held by a court to be unavailable for any reason then
(whether or not Xxxxxx is the Indemnified Person), the Company and Xxxxxx
shall contribute to the Claim for which such indemnity is held unavailable
in such proportion as is appropriate to reflect the relative benefits to
the Company, on the one hand, and Xxxxxx on the other, in connection with
Xxxxxx'x engagement referred to above, subject to the limitation that in no
event shall the amount of Xxxxxx'x contribution to such Claim exceed the
amount of fees actually received by Xxxxxx from the Company pursuant to
Xxxxxx'x engagement. The Company hereby agrees that the relative benefits
to the Company, on the one hand, and Xxxxxx on the other, with respect to
Xxxxxx'x engagement shall be deemed to be in the same proportion as (a) the
total value paid or proposed to be paid or received by the Company or its
stockholders as the case may be, pursuant to the Offering (whether or not
consummated) for which Xxxxxx is engaged to render services bears to (b)
the fee paid or proposed to be paid to Xxxxxx in connection with such
engagement.
5. The Company's indemnity, reimbursement and contribution obligations
under this Agreement (a) shall be in addition to, and shall in no way limit
or otherwise adversely affect any rights that any Indemnified Party may
have at law or at equity and (b) shall be effective whether or not the
Company is at fault in any way.
H. Limitation of Engagement to the Company. The Company acknowledges that
Xxxxxx has been retained only by the Company, that Xxxxxx is providing services
hereunder as an independent contractor (and not in any fiduciary or agency
capacity) and that the Company's engagement of Xxxxxx is not deemed to be on
behalf of, and is not intended to confer rights upon, any shareholder, owner or
partner of the Company or any other person not a party hereto as against Xxxxxx
or any of its affiliates, or any of its or their respective officers, directors,
controlling persons (within the meaning of Section 15 of the Act or Section 20
of the Securities Exchange Act of 1934), employees or agents. Unless otherwise
expressly agreed in writing by Xxxxxx, no one other than the Company is
authorized to rely upon this Agreement or any other statements or conduct of
Xxxxxx, and no one other than the Company is intended to be a beneficiary of
this Agreement. The Company acknowledges that any recommendation or advice,
written or oral, given by Xxxxxx to the Company in connection with Xxxxxx'x
engagement is intended solely for the benefit and use of the Company's
management and directors in considering a possible Offering, and any such
recommendation or advice is not on behalf of, and shall not confer any rights or
remedies upon, any other person or be used or relied upon for any other purpose.
Xxxxxx shall not have the authority to make any commitment binding on the
Company. The Company, in its sole discretion, shall have the right to reject any
investor introduced to it by Xxxxxx. The Company agrees that it will perform and
comply with the covenants and other obligations set forth in the purchase
agreement and related transaction documents between the Company and the
investors in the Offering, and that Xxxxxx will be entitled to rely on the
representations, warranties, agreements and covenants of the Company contained
in such purchase agreement and related transaction documents as if such
representations, warranties, agreements and covenants were made directly to
Xxxxxx by the Company.
I. Limitation of Xxxxxx'x Liability to the Company. Xxxxxx and the Company
further agree that neither Xxxxxx nor any of its affiliates or any of its their
respective officers, directors, controlling persons (within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act of 1934), employees or
agents shall have any liability to the Company, its security holders or
creditors, or any person asserting claims on behalf of or in the right of the
Company (whether direct or indirect, in contract, tort, for an act of negligence
or otherwise) for any losses, fees, damages, liabilities, costs, expenses or
equitable relief arising out of or relating to this Agreement or the Services
rendered hereunder, except for losses, fees, damages, liabilities, costs or
expenses that arise out of or are based on any action of or failure to act by
Xxxxxx and that are finally judicially determined to have resulted solely from
the gross negligence or willful misconduct of Xxxxxx.
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J. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be fully performed therein. Any disputes that arise under this Agreement,
even after the termination of this Agreement, will be heard only in the state or
federal courts located in the City of New York, State of New York. The parties
hereto expressly agree to submit themselves to the jurisdiction of the foregoing
courts in the City of New York, State of New York. The parties hereto expressly
waive any rights they may have to contest the jurisdiction, venue or authority
of any court sitting in the City and State of New York. In the event of the
bringing of any action, or suit by a party hereto against the other party
hereto, arising out of or relating to this Agreement, the party in whose favor
the final judgment or award shall be entered shall be entitled to have and
recover from the other party the costs and expenses incurred in connection
therewith, including its reasonable attorneys' fees. Any rights to trial by jury
with respect to any such action, proceeding or suit are hereby waived by Xxxxxx
and the Company.
K. Notices. All notices hereunder will be in writing and sent by certified
mail, hand delivery, overnight delivery or fax, if sent to Xxxxxx, to Xxxxxx &
Xxxxxxx, LLC, 0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, fax
number (000) 000-0000, Attention: General Counsel, and if sent to the Company,
to Metalink Ltd., at Xxxxx Xxxxxxxx Xxxx, Xxxxx, Xxxxxx 00000, fax number
x000-0-0000000, Attention: Yuval Ruhama, CFO. Notices sent by certified mail
shall be deemed received five days thereafter, notices sent by hand delivery or
overnight delivery shall be deemed received on the date of the relevant written
record of receipt, and notices delivered by fax shall be deemed received as of
the date and time printed thereon by the fax machine.
L. Miscellaneous. This Agreement shall not be modified or amended except in
writing signed by Xxxxxx and the Company. This Agreement shall be binding upon
and inure to the benefit of both Xxxxxx and the Company and their respective
assigns, successors, and legal representatives. This Agreement constitutes the
entire agreement of Xxxxxx and the Company with respect to the subject matter
hereof and supersedes any prior agreements. If any provision of this Agreement
is determined to be invalid or unenforceable in any respect, such determination
will not affect such provision in any other respect, and the remainder of the
Agreement shall remain in full force and effect. This Agreement may be executed
in counterparts (including facsimile counterparts), each of which shall be
deemed an original but all of which together shall constitute one and the same
instrument.
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In acknowledgment that the foregoing correctly sets forth the understanding
reached by Xxxxxx and the Company, please sign in the space provided below,
whereupon this letter shall constitute a binding Agreement as of the date
indicated above.
Very truly yours,
XXXXXX & XXXXXXX, LLC
By __________________________
Name:
Title:
Accepted and Agreed:
METALINK LTD
By __________________________
Name: Xxxxxx Xxxxxxxx
Title: Chief Executive Officer
By __________________________
Name: Yuval Ruhama
Title: Chief Financial Officer
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