EX-10.5 14 l93732bexv10w5.txt EX-10.5 Exhibit 10.5 KIRLIN SECURITIES, INC. 6901 JERICHO TURNPIKE SYOSSET, NEW YORK 11791 -------------------------------------------- MERGER, ACQUISITION AND OTHER BUSINESS ARRANGEMENT AGREEMENT ------------------------------------------- ____________, 2002 Montana Mills Bread Co., Inc. 2171 Monroe Avenue, Suite 205A Rochester, New York 14618 Attn: Eugene O'Donovan, President and Chief Executive Officer Gentlemen: This is to confirm our agreement whereby Montana Mills Bread Co., Inc. ("Company") has requested Kirlin Securities, Inc. ("Consultant") to render services to it and the Consultant has agreed to render such services on the terms and conditions set forth herein: 1. AGREEMENT REGARDING MERGERS, ACQUISITIONS AND OTHER BUSINESS ARRANGEMENTS (a) In the event that any acquisition of and/or merger with other companies or joint ventures or other contracts or arrangements with any third parties including, without limitation, (i) the sale of the business, assets or stock of the Company or any its subsidiaries or affiliates or any significant portion thereof, (ii) the purchase of the business, assets or stock of a third party or any significant portion thereof or (iii) entering into a commercial relationship with a third party not involving a transaction of the type referred to in clauses (i) or (ii) (collectively, a "Transaction"), occur which result from or are caused by introductions made by the Consultant, the Company shall pay the Consultant 5% of the Legal Consideration (hereinafter defined) paid in any such Transaction. For purposes of this Agreement, the phrase "Legal Consideration" shall mean the total value of the securities (valued as determined in the applicable agreement governing the terms of the Transaction or, if not so valued, at market on the day of closing, or if there is no public market, valued as set forth herein for other property), cash and assets and property or other benefits exchanged by the Company or received by the Company or its shareholders as consideration as a result of or arising out of the Transaction, irrespective of the period of payment or terms (all valued at fair market present value as agreed or, if not, by an independent appraiser selected by the Company in good faith). (b) All fees payable under this Section 1 are due and payable to the Consultant, in cash or by certified check, at the closing or closings of any Transaction; provided, that if the Legal Consideration on any Transaction is other than all cash, the payment to the Consultant shall be, at the option of the Company, either the cash equivalent or such other consideration proportionate with the types of Legal Consideration paid on such Transaction. No fees shall be payable under this Section 1 or otherwise if, for any reason, the Transaction is not consummated. 2. TERM OF AGREEMENT This Agreement shall be for a term of five years from the date hereof. 3. EXPENSES The Consultant shall bear all costs and expenses incurred by the Consultant directly in connection with the introduction or attempted introduction(s) made by the Consultant in connection with Transactions and otherwise in connection with the performance of its services hereunder, unless otherwise agreed to by the Company. 4. USE OF NAME AND REPORTS Use of the Consultant's name in annual reports or any other reports of the Company or press releases issued by the Company shall require the prior written approval of Consultant. 5. STATUS AS INDEPENDENT CONTRACTOR The Consultant shall perform its services as an independent contractor and not as an employee of the Company or affiliate thereof. It is expressly understood and agreed to by the parties that the Consultant, and any individual or entity that the Consultant shall employ in order to perform its services hereunder, shall have no authority to act for, represent or bind the Company or any affiliate thereof in any manner, except as may be expressly agreed to by the Company in writing from time to time. 6. ENTIRE AGREEMENT This Agreement constitutes the entire understanding between the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral or written, with respect thereto. This Agreement may not be modified or terminated orally or in any manner other than by an agreement in writing signed by the parties hereto. 7. NOTICES Any notices required or permitted to be given hereunder shall be in writing and shall be deemed given when mailed by certified mail or private courier service, return receipt requested, addressed to each party at its respective addresses set forth above, or such other address as may be given by either party in a notice given pursuant to this Section 7. 8. SUCCESSORS AND ASSIGNS This Agreement may not be assigned by either party without the written consent of the other. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and, except where prohibited, to their successors and assigns. 2 9. NON-EXCLUSIVITY Nothing herein shall be deemed to restrict or prohibit the engagement by the Company of other consultants providing the same or similar services or the payment by the Company of fees to such parties. 10. APPLICABLE LAW This Agreement shall be construed and enforced in accordance with the laws of the State of New York without giving effect to conflict of laws. 11. ARBITRATION In the event of any dispute under this Agreement, then and in such event, each party hereto agrees that the dispute shall be submitted to the American Arbitration Association in Nassau County, New York, for its decision and determination in accordance with its rules and regulations then in effect. Each of the parties agrees that the decision and/or award made by the Association may be entered as judgment of the courts of the State of New York, as shall be enforceable as such. If the foregoing correctly sets forth the understanding between the Consultant and the Company with respect to the foregoing, please so indicate your agreement by signing in the place provided below, at which time this letter shall become a binding contract. KIRLIN SECURITIES, INC. By: ------------------------------------- David O. Lindner Chairman AGREED AND ACCEPTED BY: MONTANA MILLS BREAD CO., INC. By: ---------------------------------------- Eugene O'Donovan President and Chief Executive Officer 3