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Communications World International, Inc.
Form 10-KSB
EXHIBIT 10 (o)
FINANCING AGREEMENT
THIS AGREEMENT is between Communications World International, Inc., a
Colorado corporation (the "Company"), and Bathgate XxXxxxxx Capital Group LLC, a
Colorado limited liability company (the "Consultant").
1. Consultant agrees to assist the Company in its efforts to obtain
equity, convertible debt or debt financing through private offerings or
financing from appropriate institutional and/or private lending/investing
sources, by introducing Company to one or more institutional investors, venture
capital or other potential sources of capital for the purposes of obtaining such
financing.
2. This Agreement shall apply to all financing or other arrangements,
which inure, directly or indirectly, to or for the benefit of the Company, its
assigns, beneficiaries, subsidiaries, and/or affiliates. Consultant's engagement
hereunder is for a period commencing on the date of this letter and terminating
on September 1, 2000, which period may be extended by mutual consent (the
"Engagement Period"). In the event that any time during the Engagement Period or
within one year after the Engagement Period, the Company or its assigns,
beneficiaries, subsidiaries, and/or affiliates consummates a financing or enters
into a letter of intent or other arrangement relating to financing, with an
institutional investor, venture capital or other potential source of capital
with whom the Consultant introduced or its assigns, beneficiaries, subsidiaries,
and/or affiliates, the Company agrees, at the closing of any such financing
arrangement and contemporaneously with the receipt of proceeds by the Company,
to compensate Consultant or its assigns as follows:
a) (i) Cash in the amount of 6% of the gross amount of
the proceeds if such financing is equity.
(ii) Warrants to purchase shares of the common stock
of the Company equal to 3% of the number of shares of common
stock sold in the financing. The warrants will be exercisable
for five years from date of issuance at the same price as paid
by the investors and shall contain customary anti-dilution
provisions, piggy-back registration rights, cash-less exercise
rights and be on a form agreeable to the Company and the
Consultant.
b) (i) Cash fee equal to 4% of the amount of the gross
proceeds if such financing is subordinated or convertible
debt.
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(ii) Warrants to purchase shares of common stock of
the Company equal to 3% of the number of shares of common
stock the financing debt gross proceeds would have acquired on
the date of closing based upon the closing bid price of the
Company's common stock. The warrants exercise price shall be
the closing bid price on the date the financing closes. The
warrants will be exercisable for five years from date of
issuance and shall contain customary anti-dilution provisions,
piggy-back registration rights, cash-less exercise rights and
be on a form agreeable to the Company and the Consultant.
The above fees shall be payable immediate upon the closing or other consummation
of such financing based upon the total amount available to the Company.
3. Consultant shall be deemed to have introduced the company to an
institutional investor, venture capital or other potential source of capital if
a meeting or other contact between the Company and the institutional investor,
venture capitalist, bank or other potential source of capital is arranged,
either directly or indirectly, by the Consultant.
4. Should Consultant introduce the Company to an institutional
investor, venture capital or other potential source of capital prior to the
expiration of this Agreement, Consultant shall be entitled to a fee pursuant to
paragraph 2 above for the initial financing transaction or arrangement as well
as for all subsequent financing transactions or other arrangements entered into
with the introduced firm whether they occur prior or subsequent to the
expiration of the Agreement. Such fee shall be calculated by aggregating the
gross proceeds received from all financing transactions or arrangement with the
introduced firm and then applying the percentage compensation provided in
paragraph 2 above. The Company further agrees that any fees paid pursuant to
this paragraph 4 shall be paid in accordance with paragraph 2 above. This
paragraph 4 shall also apply to any amendments, modifications or changes to any
loan agreement or other arrangement resulting in an increased source of funds
available to the Company through an introduced firm.
5. The Consultant also agrees to assist the Company in its efforts to
complete acquisitions of other telecommunications companies. During the
Engagement Period, Consultant shall render advice regarding the timing, strategy
and negotiations in connection with the acquisitions contemplated by the
Company, as shall be reasonably requested by the Company. The Company shall pay
to Consultant a fee of $15,000 for each acquisition completed by the Company.
However, the total fee paid to Consultant pursuant to this paragraph 5 shall not
exceed $60,000. The assistance of Consultant in the recently completed
acquisition of RMS and West-Tec is acknowledged. Included in this fee agreement
is advice provided in connection with the recently completed acquisitions of RMS
and West-Tec.
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6. The Company agrees to indemnify and hold Consultant, its affiliates,
control persons, managers, members, employees, agents and sureties harmless from
and against all losses, claims, damages, liabilities, costs or expenses
(including reasonable attorneys' and accountants' fees and the cost of any of
Consultant personnel involved in any such matter) arising out of Consultant's
entering into or performing under this Agreement, including costs arising out of
any dispute whether or not Consultant is a party to such dispute, except that no
indemnification shall be provided to the Consultant if the Consultant has
engaged in willful misconduct or gross negligence.
The indemnity and contribution obligations of the Company under this
paragraph 6 shall survive the termination of this Agreement, shall be in
addition to any liability which the Company may otherwise have and shall be
binding upon and inure to the benefit of any successor, assigns, heirs and
personal representatives of the Company, Consultant and any such person.
7. The Company acknowledges that consultant is not registered or
licensed as a broker-dealer with all state securities commissions or other
regulatory authorities and that should Consultant introduce Company to an
institutional investor, venture capital or other potential source of capital,
Consultant shall not, and shall not be required to, participate in any
negotiations with respect to such financing in any state wherein such activity
requires prior registration as a securities broker-dealer and is not exempt from
such registration. The Company further acknowledges that nothing in this
Agreement shall require Consultant to perform services for which the rendering
of such services would be violate of any applicable law.
8. This Agreement constitutes the entire understanding of the parties
with respect to the subject matter hereof and may not be altered or amended
except in writing and signed by both parties.
9. In the event that any dispute arises under this Agreement, the
Parties hereby agree to submit such dispute to binding arbitration in Denver,
Colorado, before the American Arbitration Association. The Company hereby agrees
to pay reasonable attorneys fees and costs associated with such arbitration and
incurred by Consultant, if Consultant prevails.
10. The Parties and each of them shall from time to time execute and
deliver such further instruments or take such further action as the other party
may reasonably request to effectuate both the letter and intent of this
Agreement.
11. No amendment to this Agreement shall be valid unless such amendment
is in writing and is signed by authorized representatives of all the parties to
this Agreement.
12. Any of the terms and conditions of this Agreement may be waived at
any time and from time to time in writing by the party entitled to the benefit
thereof, but a waiver in one instance shall not be deemed to constitute a waiver
in any other instance. A
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failure to enforce any provision of this Agreement shall not operate as a waiver
of this provision or of any other provision hereof.
13. In the event that any provision of this Agreement shall be held to
be invalid, illegal or unenforceable in any circumstances, the remaining
provisions shall nevertheless remain in full force and effect and shall be
construed as if the unenforceable portion or portions were deleted.
14. This Agreement shall be binding upon and inure to the benefit of
the parties and their respective successors and permitted assigns. The Company
may not assign any of its rights, duties or obligations, which may arise under
this Agreement without the prior written consent of the Consultant.
15. The validity, interpretation and construction of this Agreement and
each part thereof will be governed by the laws of the State of Colorado.
16. Company and Consultant represent and warrant that the individuals
executing this Agreement on behalf of the respective parties have all necessary
power and authority to execute this Agreement and bind each party. Company and
Consultant further warrant that each has duly authorized, by all necessary
action, this Agreement.
17. Parties agree that facsimile signatures shall be deemed to be
original signatures and that the Agreement and all its provisions shall be
binding upon execution by facsimile transmission Parties further agree to
exchange hard copy signed originals immediately following transmission by fax.
DATED this 3rd day of January, 2000
Communications World International, Inc.
By
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Xxx Xxxxxxxxxx, CEO
DATED this 3rd day of January, 2000
BATHGAT MCCOLLEYCAPITAL GROUP LLC
By
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Xxxxxx X. XxXxxxxx, Manager
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