EXHIBIT 4.13
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OLYMPUS SECURITIES, LLC
April 25, 2005
C. Xxxx XxXxxx
Western Power & Equipment Corp
0000-X X.X. 000xx Xxxxxx
Xxxxxxxxx, XX 00000
Re: Finder Agreement
Dear Xxxx:
This letter confirms the agreement ("Agreement") between Western Power
& Equipment Corp and its affiliated companies (collectively the "Company") to
retain Olympus Securities, LLC ("AGENT"), a registered broker-dealer and member
of the NASD to provide the services described below.
1. SERVICES
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1.1 AGENT shall use its reasonable best efforts to introduce to the
Company a limited number of corporations, partnerships, mutual funds, hedge
funds, accredited investors, investment partnerships, securities firms, lending
and other institutions and entities (collectively "Entities") which may engage
in or provide a "Transaction" (as defined below) to the Company. As used herein,
the term "Entities" also means and includes any party, which is directly or
indirectly connected with or related to one of the Entities described above
including, without limitation, all affiliates as well as any referral from any
of the Entities, any client or customer of any of the Entities, and any investor
in any of the Entities.
1.2 Except as set forth below, all services provided by AGENT under
this Agreement shall be at AGENT's cost and risk. AGENT's sole compensation, if
any, shall be a "Transaction Fee" (as set forth in Section 4 below) upon
consummation of a Transaction in any form with any Entity introduced to the
Company by AGENT.
1.3 The Company acknowledges that AGENT's responsibilities shall be
limited to the foregoing, and that AGENT shall have no (i) authority to offer or
sell securities of the Company to any potential Entity, (ii) responsibility to
participate or assist in any negotiations between any potential Entity and the
Company, and (iv) no responsibility for fulfilling any reporting or filing
requirements of the Company pursuant to applicable federal and state securities
laws. In addition, the Company expressly acknowledges and agrees that AGENT's
obligations hereunder are on a reasonable best effort basis only and that the
execution of this Agreement does not constitute a commitment by AGENT to
purchase or sell the securities of the Company.
1.4 Notwithstanding anything in this Agreement to the contrary, the
Company shall have the sole and absolute discretion to accept or not accept the
terms of any Transaction. Neither the Company nor any of its affiliates shall
have any liability whatsoever to AGENT or any other person or entity resulting
from its decision not to enter into a proposed Transaction, regardless of the
terms of the proposed Transaction.
2. TERM
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This Agreement shall take effect immediately and shall continue for a
minimum term of six (6) months. Thereafter, the Agreement will remain in effect
until terminated by either party upon 30 days prior written notice to the other.
3. INFORMATION
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In connection with AGENT's engagement hereunder, the Company will
furnish AGENT and any prospective Entity with any information concerning the
Company that AGENT reasonably deems appropriate and will provide AGENT and
prospective Entities with reasonable access to the Company's officers,
directors, accountants, counsel and other advisors. In addition, AGENT shall be
kept fully informed of any events that are reasonably likely to have a material
effect on the financial condition of the Company. The Company represents and
warrants to AGENT that all such information concerning the Company and all
private placement materials, whether in the form of a letter, circular,
memorandum, notice or otherwise to be used in placing the securities, to the
extent that the Securities are placed in a private placement, or an appropriate
subscription agreement, to the extent that the securities to be placed have been
publicly registered ("Materials") will be true and accurate in all material
respects and will not 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 made.
The Company acknowledges and agrees that AGENT will not undertake any "due
diligence" investigation and will be using and relying upon the information
supplied by the Company and its officers, agents and others, the Materials, and
any other publicly available information concerning the Company.
4. TRANSACTION FEE
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In consideration of AGENT's services, AGENT shall be entitled to
receive, and the Company hereby agrees to pay to AGENT, the following:
4.1 AGENT shall receive a Transaction Fee in cash or certified check
equal to 5% of the principal amount of the Transaction Amount (as defined
below), and shall be paid as proceeds are received by the Company from any
Transaction with an Entity introduced to the Company by AGENT. Any portion of
AGENT's Transaction Fee that is attributable to proceeds to be received by the
Company upon the occurrence of a future event, or the satisfaction of a
contingency shall be paid when the event occurs or the contingency is satisfied.
4.2 In addition to the foregoing, upon consummation of a
Transaction, the Company will issue to AGENT and/or its designee(s) warrants
(the "Warrants") to purchase such number of shares of the Company's common stock
as shall be equal to 3% of the aggregate number of fully diluted and/or
exercised or converted shares of common stock of the Company as are purchased by
the Entities. The Warrants shall be purchased for a nominal sum and shall be
exercisable for a period of five years from the date of closing with an exercise
price equal to the effective per share or unit price paid by the Entities
engaging in the Transaction. The terms of the Warrants shall be set forth in one
or more agreements (the "Warrant Agreements") in form and substance reasonably
satisfactory to AGENT and the Company. The Warrant Agreements shall contain
customary terms consistent with the registration rights granted to the
Investors.
4.3 AGENT's Transaction Fee shall have been earned and shall be
payable to AGENT upon consummation of any Transaction which occurs as a result
of this Agreement with any Entity in which a Transaction was made in whole or in
part (1) during the term of this Agreement (hereafter "Phase I"); or, (2) within
12 months following the termination date of this Agreement (hereafter "Phase
II") with regard to an Entity which AGENT or the Company has had any
communications during Phase I.
4.4 As used herein, the term "Transaction Amount" shall mean the
gross amount of all consideration, including without limitation to, all cash,
cash equivalents, notes, restrictive covenant agreements, employment agreements,
stock, warrants, and/or assets that is exchanged or provided to or by the
Company or its shareholders, affiliates, or subsidiaries in a Transaction, or
any entities formed in or which results from a Transaction. The Transaction
amount shall be cumulative (e.g., if the Company receives initial consideration
and then subsequently received royalty an/or licensing fees, warrant exercise
funds, etc,.) such that the Transaction Amount shall include all such
consideration.
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5. TRANSACTION
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5.1 As used herein, the term "Transaction" means any business
agreement, arrangement or transaction or series or combinations thereof which
may include sales or exchanges of stock, warrants, or assets, or the making of
loans, leases and other arrangements of every type and description, by which,
directly or indirectly, an interest in the Company, its affiliates, or any
business with common management with the Company, or any of their respective
assets, capital stock or other securities is transferred to another Entity,
including, without limitation, by way of or in the form of, an investment,
merger, acquisition, sale or exchange of stock or assets, lease of assets, with
or without purchase option, joint venture, licensing arrangements, minority
investment, or partnership.
5.2 As used herein, the term "Transaction" also means any business
agreement, arrangement or transaction or series or combinations thereof which
may include sales or exchanges of stock, warrants, or assets, or the making of
loans, leases and other arrangements of every type and description by which,
directly or indirectly, an interest in any Entity is transferred to the Company,
its affiliates, or any business with common management with the Company, or any
of their respective assets, capital stock or other securities, including,
without limitation, by way of and in the form of an investment, merger,
acquisition, sale or exchange of stock or assets. lease of assets, with or
without purchase option, joint venture, licensing arrangements, minority
investment, or partnership.
6. NON-CIRCUMVENT
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In order to prevent the Company from circumventing AGENT's position
with an Entity, the Company agrees that whether or not any Transaction
concerning the Company is completed, for a twelve month period commencing from
the date of this Agreement, without the prior express written consent of AGENT,
neither the Company nor any of its officers, employees, or agents will (a)
contact directly or indirectly any person or Entity introduced to the Company by
AGENT during the term of this Agreement; or (b) circumvent AGENT's position with
respect to the Company or Entity in any manner whatsoever.
7. NON-EXCLUSIVE
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Each party acknowledges and agrees that the rights granted to the other
in this Agreement are non-exclusive, and that, without limiting the generality
of the foregoing, nothing in this Agreement shall be deemed or construed to
prohibit either party herein from participating in similar business arrangements
as those described herein.
8. INDEMNIFICATION
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The Company shall indemnify AGENT under its standard indemnification
provisions attached hereto as Schedule A and made a part hereof.
9. GENERAL PROVISIONS
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9.1 This Agreement may not be amended or modified except in writing
signed by both parties to the Agreement and shall be governed by and construed
in accordance with the laws of the State of New York. Any and all claims,
disputes, or controversies arising out of this Agreement will be resolved by
arbitration before the American Arbitration Association("AAA") and that with
respect to this Agreement, a party may seek injunctive relief and ancillary
damages before the "AAA". Each party irrevocably consents to subject matter
jurisdiction before the "AAA". The parties shall restrict themselves to claims
for compensatory damages and no claims shall be made by any party for punitive
or similar damages. The parties agree that any award or decision by the "AAA"
shall be final and binding upon the parties and a judgement may be entered in a
court of competent jurisdiction upon such award or decision. The parties agree
that the sites of any arbitration or legal proceedings hereunder shall be the
City of New York.
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9.2 Binding Effect. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their successors and assigns.
9.3 AGENT shall perform its services hereunder as an independent
contractor and not as an employee of the Company or an affiliate thereof. It is
expressly understood and agreed to by the parties hereto that AGENT 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.
9.4 The Company hereby represents that it is a sophisticated
business enterprise that has retained AGENT for the limited purposes set forth
in this letter, and the parties acknowledge and agree that their respective
rights and obligations are contractual in nature. Each party disclaims an
intention to impose fiduciary obligations on the other by virtue of the
engagement contemplated by this letter.
9.5 Execution of this letter by the Company, and return of a signed
copy, by fax or otherwise to AGENT, completes this Agreement between AGENT and
the Company. AGENT will begin work with the Company to provide the services
contemplated herein.
If the foregoing is acceptable to you, please sign and return
the enclosed copy of this letter to my attention.
Very truly yours.
OLYMPUS SECURITIES, LLC
By: ____________________________
Name:
Title:
AGREED AND ACCEPTED:
WESTERN POWER & EQUIPMENT CORP
BY:_____________________________
NAME:
DATE:
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OLYMPUS SECURITIES, LLC
Schedule A
INDEMNIFICATION PROVISIONS
Ladies and Gentlemen:
In connection with our engagement of Olympus Securities, LLC ("AGENT")
as a Finder, we hereby agree to indemnify and hold harmless AGENT and its
affiliates, and the respective directors, officers, shareholders, agents and
employees of AGENT (collectively the "Indemnified Persons"), from and against
any and all claims, actions, suits, proceedings (including those of
shareholders), damages, liabilities and expenses as incurred by any of them
(including the reasonable fees and expenses of counsel) which (A) relate to or
arise out of (i) any actions taken or omitted to be taken (including any untrue
statements made to any Indemnified Person in connection with our engagement of
AGENT, or (B) otherwise relate to or arise out of AGENT's activities on our
behalf under AGENT's engagement, including any action by AGENT to collect
amounts owed to it in connection therewith, and we shall reimburse any
Indemnified Person for all expenses (including the reasonable fees and expenses
of counsel) as incurred by such Indemnified Person in connection with
investigating, preparing or defending any such claim, action , suit or
proceeding (collectively a "Claim"), in connection with pending or threatened
litigation in which any Indemnified Person is a party. We will not, however, be
responsible for any Claim, which is finally judicially determined to have
resulted exclusively from the gross negligence or willful misconduct of any
person seeking indemnification hereunder. We further agree that no Indemnified
Person shall have any liability to us for or in connection with our engagement
of AGENT except for any Claim incurred by us solely as a direct result of any
Indemnified Person's gross negligence or willful misconduct.
We further agree that we will not, without the prior written consent of
AGENT, settle, compromise or consent to the entry of any judgment in any pending
or threatened Claim in respect of which indemnification may be reasonably 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 against whom such
claim may be brought hereunder from any and all liability arising out of such
claim.
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
us in writing of such complaint or of such assertion or institution but failure
to do so notify us shall not relieve us from any obligations we may have
hereunder, unless and only to the extent such failure results in the forfeiture
by us of substantial rights and defenses, and will not in any event relieve us
from any other obligation or liability we may have to any Indemnified Person, we
will assume the defense of such Claim, including the employment of counsel
reasonably satisfactory to such Indemnified Person and the payment of reasonable
fees and expenses of such counsel. In the event, however, that such Indemnified
Person reasonably determines that having common counsel with the Company and/or
another Indemnified Person 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 us, and such Indemnified reasonably concludes that there
may be legal defenses available to it or other Indemnified Persons different
from or in addition to those available to us, then such Indemnified Person may
employ its own separate counsel to represent or defend it in any such Claim and
we shall pay the reasonable fees and expenses of such counsel. Notwithstanding
anything herein to the contrary, if we fail timely or diligently to defend,
contest, or otherwise protect against any Claim, the relevant Indemnified Person
shall have the right, but not the obligation, to defend, contest, compromise,
settle, assert cross claims, or counterclaims or otherwise protect against the
same, and shall be fully indemnified by us therefore, 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 any
Claim in which we assume the defense, the Indemnified Person shall have the
right to participate in such Claim and to retain its own counsel therefore at
its own expense.
We agree 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 AGENT is the Indemnified Person), we and AGENT shall contribute to the Claim
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for which such indemnify is held unavailable in such proportion as is
appropriate to reflect the relative benefits to us, on the one hand, and AGENT
on the other, in connection with AGENT's engagement referred to above, and the
relative fault, as between us and the Indemnified Person in respect of the
Claim, subject to the limitation that in no event shall the amount of AGENT's
contribution to such Claim exceed the amount of fees actually received by AGENT
from us pursuant to AGENT's engagement. We hereby agree that the relative
benefits to us, on the one hand, and AGENT on the other, with respect to AGENT's
engagement shall be deemed to be in the same proportion as (a) the total value
paid or proposed to be paid or received by us or our stockholders as the case
may be, pursuant to the transaction (whether or not consummated) for which you
are engaged to render services bears to (b) the fee actually paid to AGENT in
connection with such engagement; provided, however, that under no circumstances
whatsoever shall AGENT be required to contribute to any such claim any amount in
excess of the fee actually paid in connection with such engagement.
Our indemnity, reimbursement and contribution obligations under this
Agreement 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.
Should AGENT or its personnel be required or requested by us to provide
documentary evidence or testimony in connection with any proceeding arising form
or relating to AGENT's engagement, we agree to pay all reasonable expenses
(including fees incurred for legal counsel) in complying therewith.
We hereby consent to personal junction and service of process and venue
in any court in the State of New York in which any claim for indemnity is
brought by and Indemnified Person.
It is understood that, in connection with AGENT's engagement, AGENT may
be engaged to act in one or more additional capacities and that the terms of the
original engagement or any such additional engagement may be embodied in one or
more separate written agreements. The provisions of this Agreement shall apply
to the original engagement, any such additional engagement and any modifications
of the original engagement or such additional engagement and shall remain in
full force and effect following the completion or termination of AGENT's
engagement(s).
Very truly yours,
WESTERN POWER & EQUIPMENT CORP
By: ___________________________
Name:
Title:
Confirmed and agreed to:
OLYMPUS SECURITIES, LLC
By: __________________________
Name:
Title
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