Exhibit 1.05
Exhibit 1.05
FINANCIAL ADVISORY AND INVESTMENT BANKING AGREEMENT
This Agreement is made and entered into as of the _____ day of __________,
2001 among ProtoSource Corporation, a corporation organized under the laws of
California (the "Company"),and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Securities Corporation (the
"Consultant").
In consideration of the mutual promises made herein and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Purpose: The Company hereby engages the Consultant for the term
specified in Paragraph 2 hereof to render corporate finance, financial advisory
and investment banking services and to render advice on stockholder and related
matters to the Company upon the terms and conditions set forth herein.
2. Term: Twelve months from the date hereof.
3. Duties of Consultant: During the term of this Agreement, the Consultant
shall, upon the request of the Company, provide the Company with corporate
finance and related financial advisory services, advice with respect to
potential acquisitions and other business transactions and advice with respect
to stockholder and related matters. All obligations of the Consultant contained
herein shall be subject to its availability to perform such services and the
reasonableness of notice received from the Company. The Consultant shall devote
such time and effort to the performance of their duties hereunder as they shall
determine is reasonably necessary. The Consultant may look to such others for
such factual information, investment recommendations, economic advice and/or
research, upon which to base their advice to the Company hereunder, as they
shall deem appropriate. The Company recognizes that the Consultant now renders
and may continue to render corporate finance, investment banking, financial and
other advisory services to other companies which may or may not have policies
and conduct activities similar to those of the Company, and acknowledges that
the Consultant shall be free to render advice and to perform those services for
such other companies.
4. Compensation: In consideration for the services rendered by the
Consultant to the Company pursuant to this Agreement the Company shall pay the
Consultant a non-refundable fee of $87,500, payable in twelve monthly payments
of $7,291.66 per month commencing upon the execution of this Agreement.
5. Expenses of Consultant: In addition to the fees payable hereunder the
Company shall reimburse each of the Consultant for the reasonable fees and
disbursements of its counsel and reasonable travel and out-of-pocket expenses
incurred by it with the written consent of the Company in connection with the
services it has performed pursuant to this Agreement and at the request of the
Company, including without limitation, hotels, food and associated expenses and
long-distance telephone calls.
6. Liability of Consultant:
(a) In furnishing the Company with advice and other services as herein
provided, neither the Consultant nor any officer, director or agent of the
Consultant shall be liable to the Company or its creditors for errors of
judgment or otherwise, except for intentional or willful misconduct, or gross
negligence, of the Consultant in the performance of its duties under this
Agreement.
(b) It is further understood and agreed that the Consultant may rely
upon information furnished to them reasonably believed to be accurate and
reliable and that, except as herein provided, the Consultant shall not be
accountable for any loss suffered by the Company by reason of the Company's
action or inaction on the basis of any advice, recommendation or approval of the
Consultant or its respective partners, employees or agents.
(c) The Company acknowledges that all opinions and advice (written or
oral) given by the Consultant to the Company in connection with this engagement
are intended solely for the benefit and use of the Company in considering the
transaction to which they relate, and the Company agrees that no person or
entity other than the Company shall be entitled to make use of or rely upon the
advice of the Consultant to be given hereunder, and no such opinion or advice
shall be used for any other purpose or reproduced, disseminated, quoted or
referred to at any time, in any manner or for any purpose, nor may the Company
make any public references to the Consultant, or use the Consultant's name in
any annual reports or any other reports or releases of the Company without the
Consultant's prior written consent or as otherwise required by law or judicial
or administrative process.
(d) The Company acknowledges that the Consultant makes no commitment
whatsoever as to making a market in the Company's securities or to recommending
or advising their clients to purchase the Company's securities. Research reports
or corporate finance reports that may be prepared by the Consultant will, when
and if prepared, be done solely on the merits based upon an analysis performed
by the Consultant and its corporate finance personnel.
7. Company Information:
(a) The Company shall furnish to the Consultant all data, material and
other information relevant to the performance by the Consultant of its
obligations under this Agreement, or particular projects as to which the
Consultant is acting as advisors, which will permit the Consultant to be
appraised of all facts material to the advice to be rendered, and all data,
material or information reasonably requested by the Consultant. The Company
acknowledges and agrees that in performing their services under this engagement,
the Consultant may rely upon the data, material and other information supplied
by the Company without independently verifying the accuracy, completeness or
veracity of same. In the event that the Company fails or refuses to furnish any
such data, material or information reasonably requested by the Consultant, and
thus prevents or impedes the Consultant's performance hereunder, any inability
of the Consultant to perform shall not be a breach of its obligations hereunder.
(b) Except as contemplated by the terms hereof or as required by
applicable law, the Consultant shall keep confidential all non-public
information provided to it by the Company and shall not disclose such
information to any third party without the Company's prior written consent,
other than to such of its employees and advisors as the Consultant determines in
its sole judgment require access thereto. Notwithstanding the foregoing, the
Consultant shall not be required to maintain confidentiality with respect to
information (i) which is or becomes part of the public domain; (ii) of which
they had independent knowledge prior to disclosure; (iii) which comes into the
possession of the Consultant or their employees or agents in the normal and
routine course of its own business from and through independent non-confidential
sources; or (iv) which is required to be disclosed by the Consultant pursuant to
legal process or in accordance with governmental or regulatory requirements. If
the Consultant is requested or required (by oral questions, interrogatories,
requests for information or document subpoenas, civil investigative demands, or
similar process) to disclose any confidential information supplied to it by the
Company, or the existence of other negotiations in the course of its dealings
with the Company or its representatives, the Consultant shall, unless prohibited
by law, promptly notify the Company of such request(s) so that the Company may
seek an appropriate protective order.
8. Indemnification: The Company agrees to indemnify and hold harmless the
Consultant, (and the officers, directors, employees, agents, representatives and
controlling persons of each of them) from and against any and all losses,
claims, damages, liabilities, costs and expenses (and all actions, suits,
proceedings or claims in respect thereof) and any legal or other expenses in
giving testimony or furnishing documents in response to a subpoena or otherwise
(including, without limitation, the reasonable costs of investigating, preparing
or defending any such action, suit, proceeding or claim, whether or not in
connection with any action, suit, proceeding or claim in which the Consultant is
a party), as and when incurred, directly or indirectly, caused by, relating to,
based upon or arising out of the services performed by the Consultant pursuant
to this Agreement. The Company further agrees that the Consultant shall incur no
liability to the Company or any other party on account of this Agreement or any
acts or omissions arising out of or related to the actions of the Consultant
relating to this Agreement or the performance or failure to perform any services
under this Agreement, except for the intentional or willful misconduct, or gross
negligence, of the Consultant. The obligations of the Company under the Section
shall survive the termination of this Agreement.
9. Independent Contractors: The Consultant shall perform its services
hereunder as an independent contractor and not as an employee of the Company. It
is expressly understood and agreed to by the parties hereto that the Consultant
shall have no authority to act for, represent or bind the Company or any
affiliate thereof in any manner, except as may be agreed to expressly by the
Company in writing from time to time.
10. Miscellaneous:
(a) This Agreement between the Company and the Consultant constitutes
the entire agreement and understanding of the parties hereto and supersedes any
and all previous agreements and understandings, whether oral or written, between
the parties with respect to the matters set forth herein.
(b) Any notice or communication permitted or required hereunder shall
be in writing and shall be deemed sufficiently given if hand-delivered or sent
(i) postage prepaid by registered mail, return receipt requested, or (ii) by
facsimile, to the respective parties as set forth below, or to such other
address as either party may notify the other in writing:
If to the Company, to: ProtoSource Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to Consultant: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Securities Corporation
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
(c) This Agreement shall be binding upon and inure to the benefit of
each of the parties hereto and their respective successors, legal
representatives and assigns.
(d) This Agreement may be executed in any number of counterparts, each
of which together shall constitute one and the same original document.
(e) No provision of this Agreement may be amended, modified or waived,
except in a writing signed by all of the parties hereto.
(f) This Agreement shall be construed in accordance with and governed
by the laws of the State of New York, without giving effect to conflict of law
principles.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
PROTOSOURCE CORPORATION
By:________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇
President
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Securities Corporation
By:________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Chief Executive Officer
