Exhibit 1.3
BioLynx.Com, Inc.
5617 Grissom Road
San Antonio, Texas 78238
Re: Equity Placement by Travis Morgan Securities, Inc. for BioLynx.Com, Inc.
Gentlemen:
Travis Morgan Securities, Inc., (hereinafter referred to as "Travis") hereby
agrees to attempt to raise certain amounts (hereinafter referred to as "the
Required Capital") for BioLynx.Com, Inc. (herein referred to as "BioLynx" and as
the "Issuer"). The required capital to be raised is as follows:
Travis agrees to attempt to raise a minimum of $200,000 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 Travis 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
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 Travis, subject to the rights to raise the Required
Capital previously granted to Aurora Financial Services, L.L.C., which Travis
hereby acknowledges, the right to raise the Required Capital in the manner to be
described in the Prospectus. Provided, however, notwithstanding anything herein
contained to the contrary, Travis shall be entitled to employ other broker-
dealers selected by it to sell all or any portion of the Required Capital. In
that regard, Travis 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.
2. Termination. If the Offering fails to have an Initial Closing 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. As used herein, the term "Initial Closing"
shall have the meaning fairly ascribed to it 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.
3. The Offering. The Required Capital shall be raised by Travis pursuant
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.
4. Best Efforts. The Offering will be on a "best effort" only basis, with
no guarantees by Travis that any or all of the Required Capital shall be raised.
5. Compensation. As its compensation in connection with the raising of the
Required Capital, Travis shall be entitled to receive the following:
(a) A sales commission equal to 10% of the Required Capital raised by
Travis or any broker-dealer selected by Travis and acting pursuant to the
terms of this Agreement for the Issuer. Any sales
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commissions shall be paid upon at the time of the Initial Closing, and
thereafter, upon any sales generated by Travis in connection with the
Offering.
6. Indemnification. Each of the parties hereto shall indemnify and hold 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 Travis and each
person, if any, who controls Travis 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 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 Travis 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 Travis 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) Travis 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 Travis
or arising out of any violation or alleged violation by Travis or any of
Travis '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 Travis or (iii) any delivery, distribution or
furnishing by Travis , 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
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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.
(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
that a party hereto executes same.
8. Further Acts. Each party hereto recognizes that this Agreement is not
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. In this connection, the Issuer undertakes and agrees to provide
Travis 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
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
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
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 Travis, addressed to Mr. Joseph A. Cerbone, Travis Morgan Securities, Inc.
18952 MacArthur Blvd., Suite 315, Irvine, CA 92612 and if to BioLynx, addressed
to John D. Walker II President and CEO 5617 Grissom Road, San Antonio, Texas
78238. 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
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
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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
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
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 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.
16. Headings. The headings used in this Agreement are for convenience and
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
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
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
laws of the State of California, and all obligations hereunder shall be deemed
performable in Orange County, California.
20. Further Acts. The parties hereto shall do all other acts and things
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
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.
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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,
TRAVIS MORGAN SECURITIES, INC.
By /s/ Joseph A. Cerbone
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JOSEPH A. CERBONE, Chairman
Date Executed: January 26, 2000
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This Letter Agreement is accepted and
agreed to this 26th day of January, 2000
BIOLYNX.COM, INC.
By /s/ John D. Walker II
--------------------------------
JOHN D WALKER II, Chairman
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